Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD200143, Jeffrey F. Fraser, Judge.
NARES, Acting P. J.
In August 2006 Andrea Jeanne Bertaux pleaded guilty to two counts of grand theft, one count of fraudulent use of another's access card and one count of burglary. The court sentenced Bertaux to five years' probation, with the condition that she serve 365 days in jail. The court ordered that she pay restitution in the amount of $40,254.11.
Bertaux filed a motion disputing the amount of the restitution order. A restitution hearing was held, after which the court increased the restitution order to $75,935.67.
On appeal, Bertaux asserts the court erred in ordering restitution in the amount of $75,935.67 because (1) there was no evidence connecting her to the theft of the victim's vehicle; and (2) the victim did not suffer any lost work product because he took paid leave. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Underlying Guilty Plea
In June 2006 Christopher Cramer took his wife and children on vacation. Nick Bertaux, a teacher at the high school where Cramer's sister taught, agreed to housesit for the Cramers while they were on vacation. During the vacation, however, he decided he wanted to return home and gave the Cramers' house keys to his sister, Bertaux, who agreed to stay there for the final two days.
The Cramers returned home on June 24, 2006. The next morning, Mr. Cramer checked messages on the answering machine and discovered there was an alert for possible fraudulent activity on their MasterCard account. He called MasterCard and discovered his wife's card was missing from their home. He also subsequently discovered that $23,290.51 had been fraudulently charged on the card.
Cramer began looking around their house and discovered that several personal items were missing. The items included a laptop computer, their wedding photo album, a set of car and house keys, jewelry, passports, social security cards, his wife's original birth certificate, CD's, a camcorder, and videos of their family.
Cramer's Infiniti, which had been parked across the street, was stolen two days after the family returned home. The car was recovered two weeks later. In the vehicle was the car's remote access device that had been in his home while he was on vacation. The car had been started with keys that were also in the Cramers' home prior to the time Bertaux was staying there.
The police called Bertaux, and she denied taking anything from the Cramers' home. She told police that a man named Joseph Kavinski had been in the home with her, but she did not see him take anything. However, the next day police investigating the burglary went to a Best Buy store where the Cramers' MasterCard had been used and viewed videotape for the transaction. Bertaux was seen on the videotape purchasing $1,674.24 in merchandise. The investigating officer went to additional stores and viewed tapes of additional fraudulent transactions. Bertaux appeared on all of them making large purchases with Mrs. Cramer's credit card.
The investigating officer spoke with Bertaux again, and she admitted she had taken Mrs. Cramer's credit card and an expired identification card. She said she used them to make fraudulent purchases, but said Kavinski kept most of the items. She said she kept a DVD player and some jewelry taken from the home. She gave them to the investigating officer. She explained her actions by telling police that she and Kavinski were drug users.
B. Restitution Proceedings
In pleading guilty, Bertaux executed a Harvey waiver, whereby she acknowledged that "[t]he sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence."
People v. Harvey (1979) 25 Cal.3d 754.
During the restitution hearing, Cramer testified he had an Infiniti, which he parked on the street in front of his house, and that it was stolen. There were two sets of keys to the car and a remote access device. One set of keys was with him while he was on vacation, and the other set was on a coat rack adjacent to the front door of his house. That set of keys was missing when he returned home from vacation.
The Infiniti was recovered by police approximately two weeks later and was deemed a total loss by the insurance company. Drugs had been used in the car, the back window and a tire were blown out, and the inside of the car was ripped apart or otherwise destroyed. The stolen keys were used to take the car. The remote access device for the car, which had been taken from the house, was in the back seat area of the car when it was found.
During the restitution hearing, defense counsel objected to restitution being ordered for the car. The court rejected defense counsel's objection and found that the value of the Infiniti was permissible restitution. In doing so, the court found that the circumstances of the crimes showed that, by a preponderance of the evidence, Bertaux was responsible for the vehicle theft. Per the Harvey waiver, the court found it was permitted to consider all the loss that was due to the actions of Bertaux. The court ordered restitution to the victim of $20,696 for the value of the car, plus $1,200 for the contents of the car.
Regarding his economic loss because of missed work, Cramer testified he was a graduate of Stanford business school, with 21 years of business experience. He was a 25 percent owner of Karl Strauss Brewery Company, which was expected to have $26 million in sales in 2006.
Cramer testified he missed more than six weeks of work. As to his income, he explained that he has one partner and a number of investors. He and his partner created a formula where they would not pay themselves highly in wages, but would instead compensate themselves through the value they had built up in the company. Cramer explained he received a base salary of $120,000 per year. He was also compensated based upon the operational cash flows that the company generated.
Cramer determined the cost of his six weeks of lost work to be $30,000. He calculated that amount by taking his adjusted gross income of $474,128 for 2005, dividing it by 50 weeks, working 40 hours per week, to arrive at an hourly figure of $239. He subtracted from that amount the salary he received from the company during the six weeks, for a net hourly rate of $179. To be conservative, he then reduced that hourly amount to $125 per hour.
He explained that he was forced to miss work because he needed to protect his family from further damage from Bertaux and her associates, and to secure his home and finances. He explained in detail how he filled each day by closing credit and bank accounts, establishing new ones, contacting lawyers to ensure that his investments were secure, preparing affidavits for credit card companies to prove to them he had not charged the items Bertaux charged, dealing with a stolen check that had been forged and cashed on his business account, and getting new driver's licenses and social security numbers and cards for him and his family.
The court granted restitution to Cramer for his lost work product, explaining that his company did not have his services for six weeks, and his time off had a direct relationship to the profits of his company, which was the main source of his compensation. As the court stated, "I would deem it to be, essentially, the [loss] of his value, his work product, to his company which at the end of the year is a [loss] to him financially since he is not there. Like all people, if he's not there to do what he does at Karl Strauss, it doesn't get done and they don't make money. They didn't become a [$26 million] company with him staying home on the phone or watching T.V. He was a driving force in building that company. [¶] I think the law has evolved to recognize that we are no longer just a society of people who get paid by the hour and that is our wage. The financial world that we all live in is much more complicated than that. The restitution statutes are not simply reimbursing people who are hourly workers."
The court found Cramer's assessment of the time he was forced to take off reasonable and credible, and granted restitution for lost work product in the amount of $32,000.
DISCUSSION
A. Applicable Legal Principles
We review a trial court's order of victim restitution for an abuse of discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992; People v. Ortiz (1997) 53 Cal.App.4th 791, 800 (Ortiz).) The trial court is afforded broad discretion in calculating an amount of victim restitution. (People v. Balestra (1999) 76 Cal.App.4th 57, 63-64.) A trial court abuses its discretion where its order is arbitrary or capricious or exceeds the bounds of reason, all the circumstances being considered. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) No abuse of discretion will be found "'"[w]hen there is a factual and rational basis for the amount of [victim] restitution ordered by the trial court."'" (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) However, if there is no substantial evidence to support the award, and if there is no other rational explanation, the trial court has abused its discretion. (People v. Thygesen, supra, 69 Cal.App.4th at p. 993.)
Victim restitution serves to compensate victims of crimes, rehabilitate the offender, and deter the offender and others. (People v. Bernal (2002) 101 Cal.App.4th 155, 161-162; Ortiz, supra, 53 Cal.App.4th at p. 796.) Victim restitution statutes, enacted as a result of Proposition 8, are to be interpreted liberally and broadly to uphold the intention of the voters to give persons who have suffered losses resulting from criminal activity the right to restitution. (In re Johnny M., supra, 100 Cal.App.4th at p. 1132; People v. Nguyen (1994) 23 Cal.App.4th 32, 43.)
Article I, section 28 of the California Constitution, adopted as an initiative measure on June 8, 1982.
Thus, while the amount of restitution cannot be arbitrary or capricious, "'[t]here 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 damages that might be recoverable in a civil action.'" (Ortiz, supra, 53 Cal.App.4th at p. 800.) Sentencing judges are given broad discretion regarding the information they can consider and the source of that information. (People v. Foster (1993) 14 Cal.App.4th 939, 947, superseded by statute on another ground as noted in People v. Sexton (1995) 33 Cal.App.4th 64, 70.) A restitution hearing on the amount of restitution "does not require the formalities of other phases of a criminal prosecution." (Foster, supra, at p. 947.)
B. Value of Stolen Vehicle
Bertaux asserts the Harvey waiver did not allow the court to award restitution for the uncharged crime involving the theft of Cramer's car as that theft was not accomplished by her. This contention is unavailing.
As noted above, when a defendant signs a Harvey waiver as part of a guilty plea, the court, in ordering restitution, may consider the defendant's entire criminal history, including any unfiled or dismissed charges. (People v. Goulart (1990) 224 Cal.App.3d 71, 80.) The theft of the car, which the court found was the result of Bertaux's actions, thus was contemplated by the Harvey waiver.
Moreover, the court did not err in finding the theft of the vehicle resulted from Bertaux's actions. As the court noted, in ordering restitution, it only had to find by a preponderance of the evidence that Bertaux was responsible for that crime. (People v. Baumann (1985) 176 Cal.App.3d 67, 79-80.) When police recovered Cramer's vehicle they found a remote access device inside it that had been in his house when Bertaux was staying there. The car was stolen with a key that had also been in the house. It was reasonable for the court to conclude that even if Bertaux did not personally steal the vehicle, but for her actions in allowing Kavinski into the house, the car would not have been stolen. The evidence moreover was sufficient to support an inference that Bertaux and Kavinski acted in concert to steal the car. Bertaux initially told police that the thefts with which she was charged were solely the fault of Kavinski, until she was confronted with videotaped evidence showing her using the stolen credit card to purchase merchandise. Therefore, her statements to police do not compel the conclusion that she was not complicit in stealing the keys and, thereafter, the car.
C. Lost Work Product
Penal Code section 1202.4, subdivision (a)(1) provides: "It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." (Italics added.)
All further statutory references are to the Penal Code unless otherwise specified.
The restitution is "[t]o the extent possible [to be] a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to, all of the following: [¶] . . . [¶] (E) Wages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution. . . ." (§ 1202.4, subd. (f)(3)(E), italics added.)
In In re Johnny M., supra, 100 Cal.App.4th 1128, the court upheld restitution for salary and benefits paid to school employees who made previously burglarized classrooms operational. The award included expenses for custodial cleanup and benefit payments. (Id. at p. 1130.) Applying Welfare and Institutions Code section 730.6, which "parallels" Penal Code section 1202.4 (In re Johnny M., supra, at p. 1132), the court ruled "a restitution award may . . . properly include the reasonable value of employee work product lost as a result of the criminal conduct of another, be that person a minor or an adult. The evidence established that various salaried employees were required to spend time making classrooms operational after the break-ins. This caused the district an economic loss to the extent it deprived the district of the work product these salaried employees would have generated if they had not been obliged to clean up the mess made by minor. Thus, the minor's assertion that the school district 'did not incur any loss related to these salaried employees' is inaccurate. The juvenile court reasonably valued the lost work product at the salary rate of the district employees, including benefits, for the lost time." (In re Johnny M., supra, 100 Cal.App.4th at p. 1134 .)
Similarly, in the instant action Cramer sustained an economic loss to the extent his business was deprived of the work product that he would have generated if he had not been obligated to miss work to repair the damage Bertaux inflicted on him and his family. Regardless of the fact that he received a portion of his compensation while he was not at work, he was still entitled to receive restitution for the loss to his company that was the result of his being unable to fulfill his ordinary job duties. When he was absent, the work he did either went undone or was completed by other employees who were taken away from their own job duties.
Moreover, the fact Cramer was not compensated solely through an hourly wage or salary is of no moment. The court acted within its discretion when it found his calculation of the value of his lost time credible and reasonable.
Further, Bertaux's reliance on People v. Friscia (1993) 18 Cal.App.4th 834 (Friscia)for the proposition Cramer's economic loss was not recoverable is misplaced. In re Johnny M. explained that in Friscia "the defendant embezzled money from her employer, a private school. The authorities refused to prosecute the case until the school produced an accounting determining the amount of loss. The owners of the school prepared the accounting themselves, spending 222.25 hours searching records to determine the exact amount the defendant had embezzled. The defendant pleaded guilty to embezzlement and, pursuant to former Penal Code section 1203.04, the trial court ordered restitution in the amount of $47,000, which included $11,112.50 for the owners' time spent putting the case together for the authorities. [Citation.] The appellate court struck the restitution order, reasoning that the statute unambiguously limited 'restitution' to '"full or partial payment for . . . wages or profits lost due . . . to time spent as a witness or in assisting the police or prosecution,"' and the school owners did not lose any wages or ascertainable profits as a result of the time they spent making the accounting. [Citation.] [¶] Friscia, supra, 18 Cal.App.4th 834, is inapposite. Whereas the term 'restitution' was expressly defined in former Penal Code section 1203.04, it is not defined at all in section 730.6. On the contrary, section 730.6, subdivision (h) mandates that a restitution order 'be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct . . . including' various kinds of losses. (Italics added.) In Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1389, our Supreme Court held that the phrase 'including, but not limited to' is a phrase of enlargement. Here, use of the word 'including' before the list of kinds of losses indicates the Legislature's intention not to limit the court to the kinds of losses specified, but to allow the court broad discretion to determine the victim's economic loss. (Cf. [§ 1202.4], subd. (f)(3) [requiring restitution order to be of dollar amount to fully reimburse victim for losses 'including, but not limited to' specified kinds of losses (italics added)].)" (In re Johnny M., supra, 100 Cal.App.4th at pp. 1135-1136 , fns. omitted.)
Thus, Friscia based its analysis on former section 1203.04 (Friscia, supra, 18 Cal.App.4th at pp. 836-837), which was repealed and its provisions incorporated into section 1202.4, effective August 3, 1995. (Ortiz, supra, 53 Cal.App.4th at p. 795, fn 3.) The court in In re Johnny M., supra, 100 Cal.App.4th at pages 1135-1136, noted that former section 1203.04 at issue in Friscia narrowly defined restitution, while section 1202.4 reflects a legislative intent to grant courts broad discretion in awarding restitution for economic losses. The holding in Friscia has thus been superseded by section 1202.4.
Bertaux also attempts to distinguish In re Johnny M. by arguing it was a juvenile case decided under Welfare and Institutions Code section 730.6, not Penal Code section 1202.4, and therefore is not controlling authority. However, as the court noted in In re Johnny M., the relevant statutory language of Welfare and Institutions Code section 730.6 "parallels" Penal Code section 1202.4, and they thus are to be interpreted in the same manner. (In re Johnny M., supra, 100 Cal.App.4th at pp. 1132-1133, 1135-1136.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: AARON, J., IRION, J.