Opinion
NOT TO BE PUBLISHED
Superior Court County No. F413232 of San Luis Obispo Michael L. Duffy, Judge
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi, David Cook, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Heidi Lequesne appeals a $659,709.13 victim restitution order, imposed as a condition of probation after pleading no contest to grand theft by embezzlement. (Pen. Code, §§ 487, subd. (a); 1202.4, subd. (f).) Appellant claims the restitution amount is excessive because she only took $158,114.54. We affirm. (People v. Williams (2010) 184 Cal.App.4th 142, 147-148.)
All statutory references are to the Penal Code.
Facts
Doctor James Waldsmith, a veterinarian, owns Edna Valley Veterinarian Medical Center and five subsidiary businesses including Vettell Diagnostics. From 2002 to 2007, appellant was Waldsmith's bookkeeper and in charge of 14 bank accounts, business credit cards, and the accounts payable and receivable. Her job duties included mortgage payments and the payment of taxes for sales, business property, and payroll.
In August 2007, Waldsmith learned that a large check written on the Vettel Diagnostics account had bounced and that another check drawn on his business line of credit was deposited into the account and had also bounced. Waldsmith asked his accountant, Bruce Ekmanian, to do an audit. Appellant quit a week later, on September 25, 2007.
The sheriff executed a search warrant, finding Waldsmith's passports, bank statements, and business records in appellant's house.
Appellant was charged with grand theft by embezzlement, grand theft by access card (§ 484g, subd. (a)), and forgery (§ 470, subd. (d)) with special allegations that the theft exceeded $200,000. (§ 12022.6, subd. (a)(2).) Following a preliminary hearing, appellant entered into a negotiated plea to grand theft by embezzlement with a dismissal and Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) on the remaining counts.
The trial court, in calculating restitution, considered the preliminary hearing transcript, the probation report, and testimony that appellant paid herself 22 unauthorized bonuses, wrote 114 unauthorized checks to herself, made 109 unauthorized uses of business credit cards, wrote 19 duplicate payroll checks to herself, and used business credit cards, credit card convenience checks, and a business line of credit to hide the thefts. In a letter to the court, Whitman stated that the embezzlement caused more than $750,000 in business debts and liabilities which included a $250,000 unauthorized credit card debt, a $250,000 line of credit debt that was maxed out, a $85,000 IRS debt, a $17,000 state payroll tax debt, and more than $150,000 owed to Whitman's veterinary vendors.
Whitman's accountant, Bruce Ekmanian, testified that appellant took $158,114.54 and caused more than $600,000 in business losses to hide the theft. To cover the shortfall, appellant transferred money back and forth, made fraudulent credit card charges, accessed a business open line of credit, and transferred funds from bank accounts and tax withholding accounts. Whitman incurred $19,030 in accounting fees to determine the theft amount and business losses.
The trial court ordered appellant to pay $659,709.13 victim restitution based on the amount appellant stole ($158,114.54); "the amount that came from the use of the convenience checks in the sum of $86,492.06; the unauthorized transfers from the credit line of $104,403.32; [and] $250,960.64 for the fees and finance charges. [¶]... I'm using these unauthorized transfers, convenience checks and fees and finance charges because those are things that the victim either has paid or will have to pay as a direct result of [appellant's] actions. Granted [appellant] wasn't putting that money in her pocket, but by using those devices she was covering her thefts, and ultimately those are the things that the victim is going to pay.... [¶] Further, the tax penalties of $40,707.77, those are things that the doctor is going to have to pay because of the criminal actions.... [¶] Further, I'm including in that overall sum $19,030 that Mr. Ekmanian has been paid in trying to determine the losses and how they came about."
Discussion
We review for abuse of discretion, noting that the constitutional and statutory right of victim restitution is to be broadly construed. (People v. Mearns (2002) 97 Cal.App.4th 493, 498-500.) Section 1202.4, subdivision(f)(3) provides that "[t]o the extent possible, the restitution order... shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendant's criminal conduct, including, but not limited" to 11 enumerated categories of economic losses. (People v. Giordano (2007) 42 Cal.4th 644, 656.)
Appellant construes the term "economic loss" to mean the amount taken ($158,114.54) even though she spent more than $600,000 in business lines of credit, credit card convenience checks, tax withholding money, and business assets to hide the theft. Appellant claims there was "only one taking" because she replaced the stolen money ($158,114.54) with other company money and the business "benefited from the use of the transferred funds above the stolen amount."
When property is stolen and returned to the victim, restitution is generally limited to "the diminution in the value of the property when it was stolen and when it was recovered." (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1180.) But appellant ransacked the business to hide the theft, causing $750,000 in business debts and liabilities that Waldsmith will have to pay.
In People v. Williams, supra, 184 Cal.App.4th 142, defendant embezzled more than $50,000 from his employer and did not pay the company's payroll taxes between 1999 and 2006. The IRS assessed the employer with penalties for unpaid payroll taxes which the trial court declined to include in the victim restitution order. The Court of Appeal reversed on the ground that the IRS penalties constituted an economic loss "attributed directly to defendant's criminal conduct, within the meaning of section 1202.4, subdivision (f)." (Id., at p. 148.)
The same principle applies here. Economic loss is not limited to the victim's out-of-pocket losses but is broadly construed to include penalties, credit charges and fees, and business debts and liabilities attributed directly to appellant's criminal conduct.
Where, as here, the trial court grants probation it may, as a condition of probation, award restitution "even when the loss was not necessarily caused by the criminal conduct underlying the conviction.... 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 damages that may be recoverable in a civil action." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
Conclusion
Appellant makes no showing that the restitution amount, $659,709.13, is arbitrary or capricious or exceeds the bounds of reason. (Ibid.; People v. Giordano, supra, 42 Cal.4th at p. 663, fn. 7 [broad discretion in awarding victim restitution as condition of probation].) In ordering restitution, the trial court "may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. [Citations.]" (People v. Baker (2005) 126 Cal.App.4th 463, 470.)
The judgment is affirmed.
We concur: COFFEE, J. PERREN, J.