Opinion
E068406
07-27-2018
THE PEOPLE, Plaintiff and Respondent, v. STEPHANIE DANNA, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FMB1300447) OPINION APPEAL from the Superior Court of San Bernardino County. Bert L. Swift, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Stephanie Danna pled guilty to one count of forgery (Pen. Code, § 470, subd. (c)) and one count of grand theft (§ 487, subd. (a)). She was granted four years of probation with one of the terms requiring her to serve 270 days in county jail. She was further ordered to pay restitution in the amount of $142,592.60 plus 10 percent interest to the E.V. Family Living Trust (the trust). Defendant appeals the restitution order, contending that the trial court abused its discretion by failing to provide a clear statement of the calculation method used in ordering restitution.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant has also filed a petition for writ of habeas corpus, case No. E070148, which will be disposed of by separate order.
I. FACTS
In the sentencing hearing, the parties stipulated that the factual basis for the guilty pleas was contained in the police reports.
Defendant worked as a caretaker for E.V. On July 29, 2011, defendant fraudulently executed the fourth amendment to the trust naming herself as the trustee and the principal beneficiary of most of the trust's assets. E.V.'s five children and a former caregiver were the beneficiaries of the previous trust instrument. E.V. died on August 11, 2011. Shortly thereafter, his family initiated legal proceedings contesting the validity of the amendment.
By the time of E.V.'s death only four of his children were living.
While the validity of the fourth amendment was being litigated, Jenkins was appointed by stipulation to be an interim trustee in November 2011. When Jenkins became the trustee, defendant was living at E.V.'s residence. Jenkins had her execute a rental agreement. In September 2013, defendant was charged with forging the amendment to the trust and other related crimes. A month later, she was evicted from the residence after it was determined that she was not the proper beneficiary of the trust. Defendant thereafter pled guilty to the forgery and to grand theft of a 1999 Plymouth Voyager, one of E.V.'s vehicles.
Subsequent to defendant's sentencing, the trial court held three hearings to determine the amount of restitution owed the estate. Jenkins testified that the total loss to the estate due to defendant's crimes was $190,918.65. The total included a deduction of $10,075 for a judgment previously obtained against defendant in an action in small claims court. The damages alleged to have been incurred by the estate included: (1) rental income for the residential property; (2) legal and other fees associated with an unlawful detainer action to evict defendant from the residential property; (3) repair of damages on the residential property, including waste disposal; (4) replacement cost of the solar system sold from the residential property; (5) trustee fees associated with the unlawful detainer action and having damage repaired at the property site; (6) replacement value for a 1999 Plymouth Voyager and the amount defendant received for selling it; (7) replacement value for a 2004 Big Tex trailer; (8) replacement value for a 1979 R Long Trailer; (9) restoration and repair of a sailboat; (10) legal fees associated with the probate case; and (11) money taken out of E.V.'s bank account by defendant while E.V. was hospitalized.
The People requested restitution in the amount of $121,901.55. The People did not explain why its total differed from the amount claimed by Jenkins. In the listed losses, the most notable difference between the two was the amount requested for the trust administration's legal fees related to the probate case. Jenkins claimed $48,301.20 and the People claimed $1,869.70. In addition, the People listed the Kelley Blue Book value only for the Plymouth Voyager, not the amount defendant received for selling it too. The People also did not include the $2,225.60 Jenkins claimed defendant withdrew from ATM's while E.V. was hospitalized.
Defendant contested the total amount of restitution sought, claiming that many of the listed losses were overinflated. During the third hearing, defendant suggested the People's total was inflated by an "excess of 50 percent." The trial court asked if defendant was willing to stipulate to restitution in the amount of 50 percent of the amount calculated by the People. Defendant declined.
The trial court ordered restitution in the amount of $142,592.60. On the record, the trial court stated that the award was based on its review of the transcripts and the briefs submitted by both parties. The minute order provided: "Victim Restitution imposed; to be collected by CC (+10%) $156,851.86."
II. DISCUSSION
Defendant contends the trial court abused its discretion by failing to provide a clear statement of the calculation method used in ordering restitution. We agree.
"[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." (§ 1202.4, subd. (f).) The restitution order "shall identify each victim and each loss to which it pertains, and shall be of 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, . . ." (§ 1202.4, subd. (f)(3).)
Restitution orders are reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano).) "The abuse of discretion standard is 'deferential,' but it 'is not empty.' " (Ibid., quoting People v. Williams (1998) 17 Cal.4th 148, 162.) "Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim's economic loss. To facilitate appellate review of the trial court's restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered." (Giordano, at pp. 663-664.)
Here, the trial court failed to provide "a clear statement of the calculation method used" for the order for restitution. The People concede this point. The order awarding restitution did not include any findings, and the trial court did not state on the record in any of the three hearings on the matter what the basis for its award was, would, or might be—not that doing so would be sufficient. (See People v. Jones (2010) 187 Cal.App.4th 418, 423 (Jones) [concluding trial court's offer of "some idea of 'what [its] thinking [wa]s' " did not satisfy the Giordano requirement].)
The amount awarded ($142,592.60) was less than the loss claimed by Jenkins ($190,918.65), more than that requested by the People ($121,901.55), and not readily deducible from defendant's challenges to the claimed losses. As to the People's total, it contends that it meant to request restitution in the amount of $148,536.55, thus rendering the restitution order $5,943.95 less than the intended amount requested by the People. It reaches this figure by adding the replacement value of the solar system ($26,635) to its proffered total. Although the People included the replacement value of the solar system in its request for restitution based on Jenkins's claim for the same amount, the People failed to tally this amount in its total restitution requested. Thus, to reach the $5,943.95 difference, we must assume the trial court included the replacement cost of the solar system in the award. Since adding the amount of the solar system to the total request equals $148,536.55, is close to the total restitution ordered, and was requested in principle by the People and Jenkins, it seems this amount likely was included in the restitution ordered. The trial court, however, did not say either way. We cannot be certain, and that is the point.
Because the trial court did not provide any explanation of its methodology, there is no way to tell which of defendant's arguments or evidence, if any, resulted in the amount presumably proposed by the People being reduced.
Although the People concede that the trial court erred by failing to include a statement explaining how it calculated the restitution award, it nevertheless contends that the award was reasonable because it was supported by evidence in the record and was a mere $5,943.95 less than the amount requested. This contention misses the point. The issue is not whether the award was in the ballpark of the amount requested by the People; rather, the issue is how the trial court calculated the award.
For instance, in Jones, a case where, like here, the defendant was granted probation only, a victim restitution order that did not include a clear statement of the calculation methodology used was reversed for abuse of discretion for failing to comply with Giordano, even though the defendant was able to speculate how the trial court reached the amount awarded within two cents. (Jones, supra, 187 Cal.App.4th at pp. 422-423.) Despite the ability to reconstruct the likely methodology employed, the Court of Appeal reasoned it could not review the reasonableness of the award without knowing the actual basis for it. (Id. at pp. 422-424.)
Here, unlike Jones, we do not even have a theoretical calculation methodology explaining the $5,943.95 difference. Neither the People nor defendant provide any possible, let alone plausible, explanation, and we cannot find anything obvious in the record. Moreover, as explained ante, we only reach the $5,943.95 difference in the first instance by assuming the trial court included the replacement cost of the solar system in the award. Even with this assumption, we are still left to wonder what basis the trial court used for deducting $5,943.95 from the People's assumed total request.
In that regard, this case is different from People v. Phu (2009) 179 Cal.App.4th 280, 285, where a restitution order that "did not expressly state it was relying on [the power company's] calculations" was upheld with a minor modification because "it [was] clear that the court's order was based on such calculations." There, only one loss was in dispute—the amount of electrical power stolen by the defendant for his marijuana growing operation—and the lone issue was the date from which the theft should be calculated as having started. (Id. at pp. 282-283.) Here, by contrast, the claimed losses are multitudinous and many of those were challenged as being inflated, so, unlike Phu, it is far from clear what calculations the order was based on. Since we cannot determine the reasonableness of the award without knowing its basis (see Jones, supra, 187 Cal.App.4th at pp. 423-424), we reject the People's contention that the restitution order can be upheld as reasonable on the record before us.
Absent any statement of how the award was calculated, we and the parties are left to engage in pure speculation as to why the trial court awarded the amount it did. Appellate review requires something more. (Giordano, supra, 42 Cal.4th at p. 664.) We, therefore, conclude that the trial court abused its discretion by failing to provide "a clear statement of the calculation method used" in ordering restitution. Because we conclude that the trial court abused its discretion, we must reverse the restitution order and remand for the trial court to make a proper restitution order on a record that includes the requisite statement.
Defendant asks us to order the trial court to allow her "to present additional evidence and argument if necessary in order to make sure any future restitution order is supported by evidence and law." We decline the invitation. Defendant had ample opportunity to present evidence and argument to the trial court in the three hearings and attendant briefing that already occurred. Subdivision (f)(1) of section 1202.4 does not require more. (See People v. Cain (2000) 82 Cal.App.4th 81, 86 [due process rights at a hearing determining amount of restitution are protected when notice of amount claimed is provided and " ' "the defendant has an opportunity to challenge the figures" ' "].) Should the trial court desire to have further evidence and argument presented, it can. We will not require it unless, and if, the trial court determines doing so is necessary to set forth its methodology for calculating the amount of restitution.
Defendant contends there was "a discrepancy of almost $10,000 between the trial court's oral pronouncement of what amount of victim restitution [defendant] owed and what appears in the minute order." This issue is moot since the trial court will have to issue another order on remand. We, however, note that the amount ordered in the hearing—$142,592.60—is consistent with the resulting minute order imposing restitution in the amount of $156,851.86. The amount in the restitution order includes 10 percent interest ($14,259.26) added to the award ($142,592.60 + $14,259.26 = $156,851.86). Section 1202.4, subdivision (f)(3)(G), specifically requires the trial court to add 10 percent interest to the amount of restitution. --------
III. DISPOSITION
The order for restitution is reversed with direction to hold further proceedings at which the trial court shall set forth the method of calculating the amount of restitution based on the evidence already submitted by the parties. The trial court may hold a new restitution hearing allowing for additional evidence to be submitted and considered if needed to set forth the method of calculating the amount of restitution.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.