Opinion
D071093
01-26-2018
THE PEOPLE, Plaintiff and Respondent, v. HOWARD JEROME EDWARDS, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB802052) APPEAL from an order of the Superior Court of San Bernardino County, Kyle S. Brodie, Judge. Affirmed. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Howard Jerome Edwards appeals from an order of the superior court (1) denying Edwards's motion to dismiss or modify that part of his sentence in which he was ordered to pay $675,000 in victim restitution to LandSafe Title Company (LandSafe), and (2) amending a victim restitution order of $560,000 to Countrywide Home Loans (Countrywide) to require payment to Chicago Title Insurance Company (Chicago Title) following Countrywide's assignment of its victim restitution order to Chicago Title. Edwards contends that Penal Code section 1202.4 does not authorize either of these rulings. As we explain, because Edwards did not meet his burden of establishing that the trial court abused its discretion, we will affirm the trial court's order.
Further undesignated statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL BACKGROUND
We previously granted Edwards's motion for judicial notice of the following three Court of Appeal opinions: People v. Foster (Apr. 29, 2011, D056830) [nonpub. opn.] (Appeal No. 1); People v. Foster (Dec. 19, 2012, D060669) [nonpub. opn.] (Appeal No. 2); and People v. Edwards (Jan. 15, 2015, D064483) [nonpub. opn.] (Appeal No. 3). This background is drawn from Appeal No. 1, Appeal No. 2, Appeal No. 3, and the record of the trial court proceedings.
This is the fourth appeal following Edwards's conviction on multiple counts of grand theft of personal property, conspiracy to commit grand theft, multiple counts of forgery, identity theft, and offering a forged instrument for filing. As part of Edwards's original sentence in July 2009, pursuant to section 1202.4, the court ordered $675,000 in victim restitution to LandSafe and $560,000 in victim restitution to Countrywide. The court based these victim restitution awards on "a recommendation from the probation report" that the court (i.e., the judge who had presided over the trial) expressly found to be "is supported by the facts of the case." A. Appeal No. 1 (No . D056830; Apr. 29, 2011)
Section 1202.4 is lengthy, and we will describe or quote from its subdivisions as necessary. For purposes of this introduction, subdivision (b) provides in part that "[i]n every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine . . . ." (Italics added.)
The Legislature enacted section 1202.4 in 1983 (Stats. 1983, ch. 1092, § 320.1) and has amended it numerous times since its effective date. The portions of section 1202.4 that we cite in this opinion have not changed substantively since the July 2009 date on which the trial court first sentenced Edwards. (Compare Stats. 2008, ch. 468, (A.B. 2750), § 1, eff. Jan. 1, 2009, with § 1202.4.)
The prosecution has the initial burden of presenting a prima facie case for restitution, and the defendant is entitled to rebut a prima facie showing. (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
In Appeal No. 1, we reversed the convictions on four counts based on instructional error, which required resentencing on remand. (Appeal No. 1, supra, D056830.) The opinion did not mention restitution. (Ibid.) B. Appeal No. 2 (No . D060669; Dec. 19, 2012)
At the September 2011 resentencing hearing following the remand in Appeal No. 1, as relevant to the issue of victim restitution, the court ordered Edwards to pay $675,000 to LandSafe and $560,000 to Countrywide. (§ 1202.4.) As to LandSafe, the court based its ruling on "the same evidence that was before the Court at the prior [July 2009] sentencing hearing."
In Appeal No. 2, we reversed the sentencing order (on the basis the trial court had prejudicially denied Edwards's request to continue the sentencing hearing in order for him to retain private counsel) and remanded with instructions, in part, that the matter be set for a new sentencing hearing. (Appeal No. 2, supra, D060669.) Edwards did not raise any issue as to restitution in Appeal No. 2. (Ibid.) C. Appeal No. 3 (No . D064483; Jan. 15, 2015)
Following the remand in Appeal No. 2, the trial court held a series of hearings in July 2013 related to the required resentencing.
At a hearing in early July 2013, Edwards's attorney asked the court to reconsider the amount of restitution previously ordered in favor of LandSafe. According to counsel, certain real property involved in one of the underlying offenses had been sold and significant funds had been paid by the new buyer, arguably resulting in less financial loss for the victim and an offset to the previously ordered restitution. Because no evidence had been presented (merely argument of counsel), the court denied the request, nonetheless "reserv[ing] jurisdiction over the issue of victim restitution under . . . section 1202.46."
Section 1202.46 provides in relevant part: "[W]hen the economic losses of a victim cannot be ascertained at the time of sentencing pursuant to subdivision (f) of Section 1202.4, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined."
In preparation for the continued resentencing hearing in late July 2013, Edwards attached to his sentencing memorandum certain exhibits that he contended supported his argument that he was entitled to an offset to the amount of the prior LandSafe restitution order. The court began the hearing by reviewing the procedural status: "There were previous estimates of the l[oss] submitted by the victims"; the prior victim restitution orders based on those estimates of loss were part of "the appeals, the two appeals, that have been heard"; yet, in those two appeals, "[t]here's been no challenge to that particular part of Mr. Edwards's sentencing." (Italics added.) After a discussion regarding the exhibits attached to Edwards's sentencing memorandum, the court questioned Edwards's counsel's explanation of where the money may have gone, agreeing with counsel that they could "revisit" the issue at a further restitution hearing at which evidence could be presented.
In his sentencing memorandum, beneath the caption, "On the issue of restitution the court asked if we had any evidence to prove whether the property [that resulted in the victim restitution order in favor of LandSafe] ever sold and if so what was the sale price," Edwards's presentation provided in full: "Please see the attached documents which establish that the subject property sold on March 18, 2008 to a Thelma Aviles for the sales price of $352,000.00. We attach these documents thereto [sic] and incorporate them as exhibits herein." (Bolding and some capitalization omitted.) Edwards did not attempt to: identify which of the 10 exhibits he was relying on; explain which victim may have received how much cash; or establish the amount of the supposed offset. Nor did Edwards attempt to authenticate any of the 10 exhibits.
In the meantime, though, based on the evidence that supported the restitution previously ordered—specifically, the "prima facie evidence of th[e victims'] loss" years earlier—the court ordered the same victim restitution as before: $675,000 to LandSafe (LandSafe Restitution Order) and $560,000 to Countrywide (Countrywide Restitution Order). Edwards appealed from the judgment that included these (and other) orders from the September 2011 sentencing hearing.
In Appeal No. 3, supra, D064483, Edwards had not included in the record on appeal the "prima facie evidence of th[e victims'] loss" (on which the restitution orders had been based), and we had no reason to question its substantiality or his opportunity to have rebutted it. Accordingly, we affirmed the LandSafe Restitution Order and the Countrywide Restitution Order—while expressly not foreclosing either party's right to request a further restitution hearing. (Ibid.) D. The Present Appeal (No . D071093)
Rulings on the other issues in Appeal No. 3 are not relevant to the present appeal.
After issuance of the remittitur in Appeal No. 3, supra, D064483, both parties requested a further restitution hearing, which ultimately took place on July 15, 2016. Immediately prior to commencing the hearing, the court heard and granted Edwards's Faretta motion to relieve appointed counsel and to allow Edwards to represent himself. (See Faretta v. California (1975) 422 U.S. 806; People v. Marshall (1997) 15 Cal.4th 1, 20.) In reviewing the trial court proceedings in which Edwards represented himself, we are mindful that a "defendant appearing in propria persona is held to the same standard of knowledge of law and procedure as is an attorney." (People v. Clark (1990) 50 Cal.3d 583, 625, citing Faretta, at pp. 834-835, fn. 46.)
1. LandSafe Restitution Order
Prior to the Faretta motion, Edwards's attorney filed a motion to dismiss the LandSafe Restitution Order. The motion was supported by a declaration from counsel in which counsel testified to some of the procedural history and presented legal arguments regarding the burdens associated with proving and rebutting entitlement to restitution. (See fn. 4, ante.)
In his notice of the motion, Edwards indicated that the motion would be based on counsel's declaration and "such other oral evidence as need be presented at the hearing." Edwards did not attempt to present "oral evidence" at the hearing.
The People filed written opposition to Edwards's motion. The People first argued that Edwards already had ample opportunities to raise these same objections—which suggested a waiver or forfeiture. Alternatively, the People relied on the law of the case doctrine by arguing that, since Appeal No. 3 had affirmed the LandSafe Restitution Order based on the People's prima facie showing and since Edwards's motion failed to present evidence or argument to rebut that showing, Edwards was barred from raising the same arguments in his motion.
At the hearing, by which time Edwards was representing himself, Edwards and the court discussed the ruling in Appeal No. 3, supra, D064483. In particular, the court advised Edwards that Appeal No. 3 had affirmed the LandSafe Restitution Order in part because Edwards had not presented any evidence (as opposed to argument from counsel) to challenge the prima facie showing of economic loss that the People presented at the September 2011 sentencing hearing.
Appeal No. 3, supra, D064483, provides: "Arguments of counsel, of course, are not evidence (People v. Friend (2009) 47 Cal.4th 1, 84)"; and "Edwards has not challenged the prima facie showing of economic loss that was presented at the September 2011 sentencing hearing on which the current restitution order is based."
Changing the focus of the motion, Edwards then presented certain trial exhibits and, based on entries in them (in particular, trial exhibit No. 17), argued why certain disbursements showed both that LandSafe was not a direct victim and that he never received $675,000. Edwards continued his argument by relying on additional documents (reflecting real estate transactions) that were not trial exhibits or otherwise admissible evidence, and the court reminded him that, as set forth in Appeal No. 3, neither unauthenticated documents nor his explanations of the real estate transactions reflected on them were evidence. Finally, at the hearing, Edwards filed a "Summary of Points of Restitution," which set forth his reasons as to why the LandSafe Restitution Order should be modified or dismissed under section 1202.4. In this summary, consistent with his oral remarks, Edwards challenged both whether LandSafe was a direct victim and the amount of the restitution.
In addition to arguing facts—without evidence—related to the underlying offenses, in his summary Edwards also argued that he did not commit 27 of the originally charged offenses. At the court's suggestion, copies of the trial exhibits that Edwards mentioned during his oral presentation were attached to the summary.
The trial court denied Edwards's motion to dismiss the LandSafe Restitution Order. The court explained that Edwards had not presented evidence that rebutted the prima facie showing of LandSafe's entitlement to restitution in the amount of $675,000—a prima facie showing that Edwards had not previously challenged.
2. Countrywide Restitution Order
In response to Edwards's motion to dismiss the LandSafe Restitution Order, Chicago Title filed an "opposition" in which Chicago Title requested that the Countrywide Restitution Order be amended to provide payment to Chicago Title in place of Countrywide. Chicago Title explained that Countrywide had assigned its rights under the Countrywide Restitution Order to Chicago Title, but that the court would not disburse any funds to Chicago Title without an order directing that the payments be made to Chicago Title. In support of this opposition, Chicago Title submitted declarations from two of its attorneys, in which they (1) presented evidence of an assignment of the Countrywide Restitution Order from Countrywide to Chicago Title, and (2) requested an amended order directing the payments to Chicago Title.
Edwards's motion did not mention Countrywide, Chicago Title, or the real estate transaction underlying the offenses on which the Chicago Title Restitution Order was based.
At the beginning of the hearing on Edwards's motion as to LandSafe, the prosecutor explained that, since Edwards had scheduled a hearing as to restitution, the People and Chicago Title wanted to take care of the assignment of the Countrywide Restitution Order at the same time. After the court ruled on Edwards's motion as to LandSafe (see pt. I.D.2., ante), counsel for Chicago Title and the district attorney jointly requested an amended restitution order based on the assignment from Countrywide to Chicago Title.
Consistent with its written submissions, Chicago Title argued that, as an assignee of the Countrywide Restitution Order, Chicago Title was entitled to an order identifying it (Chicago Title) as the entity entitled to the $560,000 in restitution. In response, Edwards argued that Chicago Title was merely Countrywide's insurer, and that, as an insurer Chicago Title was not a direct victim entitled to restitution for purposes of section 1202.4. In part, Edwards cited and relied on People v. Birkett (1999) 21 Cal.4th 226 (Birkett), which held that, under the then-applicable predecessor to section 1202.4 (former § 1203.04), an insurer that merely satisfied the contractual obligation to reimburse the crime-related losses of its policyholder was not a "direct victim" for purposes of victim restitution. (Birkett, at p. 245.)
Actually, as presented in one of the attorney declarations submitted in support of the requested order, Chicago Title also argued to the court: (1) at a May 31, 2016 hearing, Edwards's attorney stated that he had no objections to Chicago Title's requested amended order; (2) on that basis, Chicago Title had submitted to the court and served Edwards with a proposed order; and (3) the time for objections had passed. However, we do not rely on this testimony, since (1) Chicago Title did not provide a reporter's transcript of the May 31, 2016 proceedings; (2) the court's minutes do not reflect such an agreement; (3) Edwards objected to the requested amended order; and (4) the trial court neither confirmed the alleged agreement nor relied on it in ruling on the request for an amended restitution order.
The portion of former section 1203.04 at issue in Birkett was repealed and incorporated into the statute at issue here, section 1202.4. (Birkett, supra, 21 Cal.4th at p. 230, fn. 2; see Stats. 1995, ch. 313, §§ 8, 5.)
Agreeing with Chicago Title, the trial court ruled that Chicago Title was entitled to the amended restitution order on the basis of the written assignment from Countrywide. The court granted Chicago Title's request and signed an amended order for restitution that allows Chicago Title to recover the $560,000 previously awarded as victim restitution to Countrywide (Chicago Title Amended Restitution Order).
3. This Appeal
At the conclusion of the July 15, 2016 hearing, the court filed a minute order (2016 Order) that denied Edwards's motion as to the LandSafe Restitution Order and granted Chicago Title's request for an order recognizing Countrywide's assignment of the Countrywide Restitution Order to Chicago Title. Edwards, still representing himself, timely appealed from the 2016 Order. After receipt of the initial record on appeal, appellate counsel was appointed for Edwards, and she has represented Edwards in this appeal since her appointment.
II.
DISCUSSION
On appeal, Edwards challenges the LandSafe Restitution Order and the Chicago Title Amended Restitution Order, on the basis that neither LandSafe nor Chicago Title is a direct victim of the crimes of which Edwards was convicted—a statutory requirement for any victim restitution order. Alternatively, Edwards seeks a reduction of the amount of restitution that Chicago Title is authorized to receive. As we explain, given the procedural history of this case, the evidence presented to the trial court, and the record on appeal, Edwards has not met his burden of establishing reversible error. A. Substantive Law
Based on "the unequivocal intention of the People of the State of California," a crime victim has a constitutional right to restitution: "Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (Cal. Const., art. I, § 28, subd. (b)(13)(A) & (B).) Implementing that constitutional right, the Legislature enacted section 1202.4, which sets forth its intent "that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." (§ 1202.4, subd. (a)(1).) Construing almost identical language in an earlier version of what is now section 1202.4, subdivision (a)(1), our Supreme Court ruled that, by this language, the Legislature intended to require the convicted defendant "to make full restitution for all losses his crime had caused . . . ." (Birkett, supra, 21 Cal.4th at p. 246 [under former § 1203.04].)
For purposes of section 1202.4, a " 'victim' " entitled to restitution includes a "corporation, . . . partnership, association, joint venture, . . . or any other legal or commercial entity when that entity is a direct victim of a crime." (§ 1202.4, subd. (k), italics added.) To qualify as direct victims under section 1202.4, subdivision (k), entities like LandSafe and Countrywide must be " 'the "immediate objects of the [defendant's] offenses." ' " (People v. Runyan (2012) 54 Cal.4th 849, 856 [decedent's estate not a direct victim of crime that resulted in decedent's death].) Although " '[t]he term "victim" has a broad and flexible meaning' " (People v. Brunette (2011) 194 Cal.App.4th 268, 280), that meaning is not so broad and flexible to include entities that are indirect or collateral victims of the crime of which the defendant was convicted.
For example, an insurance company that indemnifies the victim, its insured, against covered losses is not the direct victim of a defendant convicted of auto theft. (E.g., Birkett, supra, 21 Cal.4th 226.) In contrast, an insurance company that is defrauded is a direct victim of a defendant convicted of insurance fraud. (E.g., People v. O'Casey (2001) 88 Cal.App.4th 967; People v. Moloy (2000) 84 Cal.App.4th 257.)
With exceptions not applicable here, the sentencing court is required to order restitution for economic losses caused by the convicted defendant, "based on the amount of loss claimed by the victim . . . or any other showing to the court" (§ 1202.4, subd. (f)), in an amount "sufficient to fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendant's criminal conduct" (§ 1202.4, subd. (f)(3)). In addition to victim compensation, such restitution is required "for rehabilitative and deterrent purposes." (Birkett, supra, 21 Cal.4th at p. 246; accord, People v. Crow (1993) 6 Cal.4th 952, 957 (Crow) [restitution for welfare fraud under former Gov. Code, § 13967, subd. (c)].) Because "[d]etermination of the amount of restitution ordered pursuant to this subdivision [(f)] shall not be affected by the indemnification or subrogation rights of a third party" (§ 1202.4, subd. (f)(2)), a victim's mitigation of losses will not offset restitution (Birkett, at pp. 246-248 & fns. 19, 21).
The sentencing court " ' "may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole." ' " (People v. Sy (2014) 223 Cal.App.4th 44, 63 (Sy).) There is no requirement that the restitution order either " ' "be limited to the exact amount of the loss in which the defendant is actually found culpable" ' " or " ' "reflect the amount of damages that might be recoverable in a civil action." ' " (Ibid.) B. Standards of Review
All presumptions and intendments are in favor of the 2016 Order. (People v. Green (1979) 95 Cal.App.3d 991, 1001.) We may affirm the trial court's ruling on any correct basis presented by the record, " 'whether or not relied upon by the trial court' "; that is because " 'it is judicial action, and not judicial reasoning or argument, which is the subject of [appellate] review.' " (People v. Perkins (2016) 244 Cal.App.4th 129, 139.)
Because we review a sentencing court's restitution order for an abuse of discretion (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Martinez (2017) 10 Cal.App.5th 686, 721 (Martinez)), we also will review for an abuse of discretion an order denying a motion to modify or dismiss an existing restitution order.)
An abuse of discretion occurs when the order is based on "a demonstrable error of law" or when there is no "factual [or] rational basis" for the restitution ordered. (Martinez, supra, 10 Cal.App.5th at p. 721.) In determining whether the record contains a factual basis for the restitution, we review the sufficiency of the evidence in support of the order. (Sy, supra, 223 Cal.App.4th at p. 63.) In conducting this review, " ' "the ' "power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the trial court's findings.' . . . 'If the circumstances reasonably justify the [trial court's] findings,' the judgment may not be overturned when the circumstances might also reasonably support a contrary finding.' " ' " (Ibid.) That is because, in reviewing a restitution order, " ' "[w]e do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact." ' " (Ibid.) C. Analysis
On appeal, Edwards argues that neither LandSafe nor Chicago Title is a "direct victim" as required by section 1202.4, subdivision (k). With regard to the Chicago Title Amended Restitution Order, Edwards additionally contends that the amount of restitution should be reduced to the amount proven at the July 2016 hearing. As we explain, by failing to rebut the People's prima facie showing in prior proceedings, Edwards forfeited consideration of the issue; because Countrywide validly assigned the Countrywide Restitution Order to Chicago Title, Chicago Title is entitled to receive any disbursements made pursuant to that order; and Edwards did not establish a lack of substantial evidence to support the amount of restitution to which Chicago Title, as assignee, is entitled.
1. The Trial Court Did Not Err in Denying Edwards's Motion to Dismiss the LandSafe Restitution Order
On appeal Edwards contends that, because none of the underlying offenses on which Edwards was convicted was committed against LandSafe, LandSafe was not a direct victim entitled to restitution.
Referring to the probation report, Edwards suggests that the report does not contain substantial evidence to support a prima facie case for restitution to LandSafe. Instead, relying on trial exhibit No. 17, Edwards suggests that South Pacific Financial funded certain loans, using LandSafe as an intermediary or escrow holder. From these two suggestions, Edwards argues that the LandSafe Restitution Order must be reversed, because there is no evidence to support a finding that LandSafe is a direct victim of Edwards's crimes. However, by failing to raise this argument at the time of the July 2013 resentencing hearing that resulted in the LandSafe Restitution Order, Edwards forfeited consideration of this argument in support of his motion to dismiss the LandSafe Restitution Order.
The probation report provides in relevant part: "According to the District Attorney's report, . . . [LandSafe] completed a fraudulent loan on behalf of the defendants in the amount of $675,000. Restitution should be ordered for th[is] amount accordingly." Edwards does not mention the district attorney's report or attempt to explain why the facts contained in the report do not support the restitution awarded.
Exhibit No. 17 is a two-page document dated August 23, 2006, and entitled "LANDSAFE TITLE - Disbursement Worksheet - Order 05056565." It appears to show receipts of $665,150.84 from South Pacific Financial and disbursements of the same total amount to various entities.
Edwards also failed to raise this argument at the original sentencing in July 2009 (at which the trial court made its findings based on the evidence before it) and at the September 2011 resentencing (at which the court ordered the same restitution as in 2009, based on the same prima facie showing as in 2009). Likewise, in the three appeals following the three restitution orders, Edwards did not raise the argument he raises here. (Appeal No. 1, supra, D056830; Appeal No. 2, supra, D060669; Appeal No. 3, supra, D064483.)
Where, as here, the probation report recommends the imposition of a restitution fine in a particular amount and cites the statutory authority for the fine, a defendant who fails to object when the trial court imposes that fine forfeits the objection on appeal. (People v. Gillard (1997) 57 Cal.App.4th 136, 165, fn. 18 (Gillard); People v. Menius (1994) 25 Cal.App.4th 1290, 1299 (Menius); People v. Foster (1993) 14 Cal.App.4th 939, 943-944 (Foster) superseded by statute on another issue as noted in People v. Sexton (1995) 33 Cal.App.4th 64, 70.) Certainly, if a defendant forfeits the argument for a direct appeal of the restitution order, the defendant also forfeits the argument as a basis on which to later dismiss the restitution order in a collateral attack on the order.
The probation report concludes, in part, under the heading "Restitution to Victim": "It is respectfully recommended that the defendant, Howard Jerome Edwards, be ordered, pursuant to PC 1202.4, to pay restitution to the victim, Landsafe Title Company, in the amount of $675,000.00, to be collected by the Department of Corrections." (Italics added; some capitalization omitted.)
Anticipating this argument, in his opening brief Edwards argues that where a restitution order could not be lawfully imposed under any circumstances, it constitutes an unauthorized sentence; and an unauthorized sentence can be corrected at any time. While Edwards's premise and conclusion are each accurate statements of the law, on the present record Edwards cannot establish the premise for the conclusion he seeks.
An unauthorized sentence is one that "could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) Further, an unauthorized sentenced is "subject to judicial correction" at any time by any court with jurisdiction. (People v. Serrato (1973) 9 Cal.3d 753, 763, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1.)
A sentence is " 'unauthorized' " only where the "error is 'clear and correctable' independent of any factual issues presented by the record at sentencing." (Scott, supra, 9 Cal.4th at p. 354, italics added.) This most commonly occurs "where the court violates mandatory provisions governing the length of confinement." (Ibid.) In contrast, here, Edwards's entire presentation is based on: (1) his interpretation of what one document (trial exhibit No. 17) says about receipts and disbursements on what appears to be an escrow or reconciliation statement; and (2) his unsubstantiated argument about what the evidence at trial showed (or did not show). If Edwards wanted to challenge the People's prima facie showing in support of the restitution order—either the identity of the victim or the amount—he was required to do so at the sentencing hearing; and by failing to have done so (on three prior occasions), he forfeited his right to challenge the People's prima facie showing as part of his motion to dismiss the restitution order. (See Gillard, supra, 57 Cal.App.4th at p. 165, fn. 18; Menius, supra, 25 Cal.App.4th at p. 1299; Foster, supra, 14 Cal.App.4th at pp. 943-944.)
As a reminder, at the original sentencing hearing in July 2009, after referring to the "recommendation from the probation report" that restitution to LandSafe be ordered in the amount of $675,000, the court expressly found that the probation department's recommendation "is supported by the facts of the case." Consistently, at the resentencing hearings in September 2011 and July 2013, the court based its rulings on the People's prima facie evidence of the victims' losses from the original July 2009 sentencing hearing—namely, the facts of the case from the trial.
In any event, even if Edwards had not forfeited his objections to the LandSafe Restitution Order, he did not meet his burden of establishing reversible error on this record. Instead, Edwards merely presented selected facts from trial exhibit No. 17 which, if credited by a trier of fact, at best suggest a different amount of restitution; they do not require, as Edwards argues on appeal, dismissal of the order as a matter of law. Indeed, in his opening brief, Edwards acknowledges that, "by his presentation of Exhibit no. 17," he merely "presented sufficient evidence to 'dispute the determination of the amount of restitution' to LandSafe." (Italics added.) Given what is at best conflicting evidence, we cannot say that the findings in the LandSafe Restitution Order were not supported by substantial evidence.
Moreover, on a substantial evidence review, we do not determine whether the record contains substantial evidence to support the finding the appellant contends should have been made; we consider only what evidence (contradicted or uncontradicted) was before the trial court at the time of the ruling and determine whether it was substantial and, if so, whether it supported the finding actually made. (Sy, supra, 223 Cal.App.4th at p. 63.) Thus, regardless of the evidence contained in trial exhibit No. 17, Edwards's presentation fails as a matter of law, because he did not attempt to establish that the finding actually made—namely, that the "recommendation from the probation report" was "supported by the facts of the case"—was unsupported by substantial evidence. To have met this standard, Edwards was required to have provided all of the evidence presented at trial (not just one exhibit) and establish that it did not include substantial evidence to support the recommendation from the probation department. The fact that one trial exhibit may support a different finding is irrelevant to our substantial evidence review of the finding actually made. (Ibid.)
Nothing has changed since Appeal No. 3. There, too, we were unable to review the substantiality of the evidence in support of restitution awarded, because the record on appeal did not contain the evidence of "the facts of the case" on which the sentencing court had relied—expressly noting that "Edwards has the burden of presenting a complete record." (Appeal No. 3, supra, No. D064483, quoting People v. Slocum (1975) 52 Cal.App.3d 867, 879.)
Edwards's further reliance on a copy of a document entitled "Ownership History Report for Parcel 1119-081-17-0000" (with no mention of a street address) attached to his sentencing memorandum prior to the July 2013 resentencing hearing does not help Edwards. Like most of what Edwards has relied on over the years, this document is not evidence.
For these reasons, Edwards did not establish that the trial court abused its discretion in denying Edwards's motion to dismiss the LandSafe Restitution Order.
In his reply brief, Edwards suggests that, if we conclude that he forfeited his right to challenge the People's prima facie showing of economic loss—as we have, ante—then we should also conclude that he received ineffective assistance of counsel. We deny this request on both procedural and substantive grounds.
Procedurally, Edwards raised the ineffective assistance of counsel claim in his reply brief, despite acknowledging the potential forfeiture issue in his opening brief. In doing so, Edwards forfeited review of this claim on direct appeal. (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.) In any event, substantively, where "a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Grimes (2016) 1 Cal.5th 698, 735.) Here, although the record does not show why Edwards's trial counsel decided not to challenge the probation department's recommended restitution, the record does contain at least one possible explanation: Since the prosecutor had evidence of additional victims for whom restitution might have been awarded, if Edwards challenged the recommended restitution to Countrywide, then the People might have requested additional restitution.
2. The Trial Court Did Not Err in Issuing the Chicago Title Amended Restitution Order
Edwards argues that, in modifying the Countrywide Restitution Order, the trial court erred as a matter of law (which, as we explained ante, is an abuse of discretion). More specifically, Edwards argues that, because Chicago Title was not a direct victim of Edwards's crimes, section 1202.4 precluded Chicago Title from recovering restitution.
In support of its request, Chicago Title submitted documentary evidence of Countrywide's assignment of the Countrywide Restitution Order to Chicago Title and testimony that "[d]espite this assignment, the Court will not disburse any funds to Chicago [Title] until the [Countrywide] Restitution Order has been modified to reflect that the payments must be directed to Chicago [Title]." (Italics added.) Edwards does not challenge the actual assignment, expressly acknowledging that Countrywide had the ability to assign its restitution order to Chicago Title. However, Edwards continues, regardless of the validity of the assignment, section 1202.4 does not authorize the trial court to have issued a victim restitution order in favor of Chicago Title, since Chicago Title was not a victim of the crimes Edwards committed. We reject Edwards's narrow application of restitution; under the facts of this case, Chicago Title is entitled to receive any payments based on the restitution awarded to Countrywide as a victim of Edwards's crimes.
The initial problem with Edwards's argument is his characterization of what the trial court did. The court did not issue a section 1202.4 victim restitution order in favor of (nonvictim) Chicago Title; rather, it issued an amended order for victim restitution—by which any recovery of the $560,000 in victim restitution previously ordered to Countrywide is to be paid to Chicago Title. Indeed, at the hearing, the court expressly stated that it did not consider Chicago Title a victim and was only considering Chicago Title's entitlement to payments based on Countrywide's assignment of the Countrywide Restitution Order to Chicago Title. Consistently, the court form for an order for restitution was modified to delete the words that might identify Chicago Title as "the victim," such that the Chicago Title Amended Restitution Order provides: "THE COURT ORDERS defendant . . . to pay restitution to . . . the victim (name): Chicago Title Insurance Company in the amount of: $560,000 . . . plus interest at 10 percent per year from the date of . . . sentencing."
To the extent Edwards is challenging whether Countrywide could assign the Countrywide Restitution Order, we agree with the Attorney General that a section 1202.4, subdivision (f) restitution order (like the Countrywide Restitution Order here) is "enforceable as if the order were a civil judgment" (§ 1202.4, subd. (a)(3); accord, People v. Turrin (2009) 176 Cal.App.4th 1200, 1208); and consistent with Code of Civil Procedure section 954, a civil judgment is assignable (see Cal-Western Business Services, Inc. v. Corning Capital Group (2013) 221 Cal.App.4th 304, 310).
In addition, we find support from Birkett, in which our Supreme Court instructed that "the criminal restitution scheme should always require the offender to pay the full cost of his crime, receiving no windfall from the fortuity that the victim was otherwise reimbursed . . . ." (Birkett, supra, 21 Cal.4th at p. 246.) Applying this reasoning here, we conclude that Edwards should not receive a windfall from the fortuity that Countrywide assigned its right to receive payments under the Countrywide Restitution Order, but the trial court would not disburse any funds to Chicago Title without an order authorizing such disbursements.
We also find support from the Supreme Court's emphasis on the "rehabilitative and deterrent purposes" of making full restitution of all losses caused by the crimes of which the defendant was convicted. (Birkett, supra, 21 Cal.4th at p. 246; accord, Crow, supra, 6 Cal.4th at p. 957 [restitution is both a " 'deterrent to future criminality' " and a tool " 'to rehabilitate the criminal' "].) Applying these considerations here, we conclude that, were we to decide that Countrywide was precluded from validly assigning the Countrywide Restitution Order on this record, the desired goals of rehabilitation and deterrence would not result from the restitution awarded.
Finally, Edwards argues that, even if the assignment is upheld, the Chicago Title Amended Restitution Order must be reduced to from $560,000 to $448,000. We disagree.
We will assume, without deciding, that the trial court had jurisdiction to consider this request.
Edwards cites to evidence of Chicago Title's representative's explanation of the transaction underlying the crimes of which Edwards was convicted—evidence that does reference a $448,000 loan. However, Edwards never challenged the amount of the award in the Countrywide Restitution Order—either at the July 2013 hearing that resulted in the Countrywide Order or in the proceedings that resulted in the 2016 Order now on appeal. By the assignment, therefore, Chicago Title received Countrywide's "rights, title and interest in and to the [Countrywide] Restitution Order"—an order that provides for $560,000 in restitution. (Some capitalization and bolding omitted.)
At part II.C.1., ante, we concluded that Edwards forfeited his right to challenge the amount of the LandSafe Restitution Order by failing to challenge the People's prima facie showing at the time the court ordered the restitution. For the same reason, Edwards forfeited his right to challenge the amount of the Countrywide Restitution Order (see Gillard, supra, 57 Cal.App.4th at p. 165, fn. 18; Menius, supra, 25 Cal.App.4th at p. 1299; Foster, supra, 14 Cal.App.4th at pp. 943-944) and, accordingly, the amount to which Chicago Title is entitled as a result of the assignment of the Countrywide Restitution Order.
In any event, even if we were to consider the merits of Edwards's argument, the result would be no different. Evidence of a June 2007 loan in the principal amount of $448,000 without more (and Edwards does not provide more) is not evidence that Chicago Title is not entitled to the $560,000 set forth in the Chicago Title Amended Restitution Order. Here, the record contains the following uncontradicted substantial evidence: The court ordered $560,000 in restitution in the Countrywide Restitution Order, and Countrywide assigned all of its "rights, title and interest in and to the [Countrywide] Restitution Order" to Chicago Title. (Some capitalization and bolding omitted.) Once again, we look only to see whether there is substantial evidence to support the finding actually made; we do not consider whether the record may also contain substantial evidence to support a different finding. (Sy, supra, 223 Cal.App.4th at p. 63.) For this reason, because the court's ruling that Chicago Title is entitled to recover the $560,000 that was awarded in the Countrywide Restitution Order is supported by substantial evidence, the evidence concerning a $448,000 loan is irrelevant. D. Conclusion
Because Edwards did not meet his burden of establishing that the trial court abused its discretion with regard to either the LandSafe Restitution Order or the Chicago Title Amended Restitution Order, Edwards did not establish reversible error in the 2016 Order. Edwards further did not establish a claim for ineffective assistance of counsel related to the LandSafe Restitution Order.
DISPOSITION
The 2016 Order is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. NARES, J.