Opinion
G044425 Super. Ct. No. 08WF2378
11-03-2011
THE PEOPLE, Plaintiff and Respondent, v. ARPAN HARSHAD SHAH, Defendant and Appellant.
Lori Shellenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, James S. Odriozola, Temporary Judge. Affirmed as modified.
Lori Shellenberger, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
Arpan Harshad Shah appeals from a postjudgment order awarding $6,847.46 in direct victim restitution to Pacific Life Insurance Company (PLIC). He contends the trial court abused its discretion by reimbursing PLIC for investigative work, arguing $6,100 of the amount awarded must be stricken because the PLIC security officer's time does not fit the definition of lost wages under Penal Code section 1202.4, subdivision (f)(3)(E), nor case law established in People v. Friscia (1993) 18 Cal.App.4th 834. He also contends the trial court's failure to advise him of the dangers of self-representation and to secure a knowing and intelligent waiver of the right to counsel before proceeding with the restitution hearing violated his rights under the Sixth Amendment to the United States Constitution.
All further statutory references are to the Penal Code unless otherwise stated.
We find the contentions interesting, but ultimately meritless. However, the court's restitution order failed to account for the amount Shah has already paid and must be modified to reflect a balance due of $6,157.46. As modified, the judgment is affirmed.
I
FACTS AND PROCEDURAL HISTORY
The facts are derived from the probation report and testimony from the restitution hearing with particular emphasis placed on those facts pertinent to PLIC.
During the months of July, August, September, and October 2008, Shah repeatedly entered a particular Kinko's store and mailed several packages containing things like stationary, chocolate, address labels, gum, underwear, Sharpie markers, or pencils to several young women. He used FedEx business accounts for PLIC, the Aramark Corporation, and Corinthian College without their knowledge or permission. Although he knew some of the young women involved, he also obtained other names and contact information from online sources. In some cases, Shah also sent e-mails and texts to the young women, many of whom were upset and frightened by his unwelcome advances. The young women, or in some cases their parents, contacted the various companies to complain, and the companies contacted the police.
On June 4, 2009, the district attorney filed a first amended complaint charging Shah with 19 counts of second degree burglary and 2 counts of grand theft. In September, Shah pled guilty to 10 counts of second degree burglary in exchange for the dismissal of the remaining counts with a Harvey waiver, a grant of probation for three years under specified terms and conditions, which included an order to pay direct victim restitution in an amount "to be determined by the Court and as directed by the Probation Department."
The Harvey case recognized that when charges are dismissed against a defendant, there should not be any punishment for them. (People v. Harvey (1979) 25 Cal.3d 754, 758.) "Implicit in such a plea bargain, we think, is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Ibid.) A "Harvey waiver" is an agreement by the defendant to waive the protection of Harvey and make restitution or otherwise submit to some sentencing consequence for the dismissed charges.
Initially, PLIC claimed $3,347.46 in damages: $790.76 for stolen property, $56.70 for internet investigation, and $2,500 in lost wages (50 hours x $50 per hour) for their investigator's time. Shah paid $790, but refused to pay the balance of $2,557.46. In a supplemental probation report, his probation officer wrote, "it is felt that the probationer is being defiant and causing more aggravation into the case by not paying the remaining amount."
On August 26, 2010, the restitution hearing convened with Shah in attendance but unrepresented by counsel. Shah did not request the appointment of the public defender, nor did the court make any inquiry about Shah's stated desire to represent himself.
The prosecutor called one witness, Richard Olson, the Director of Security for PLIC. Olson testified he received a telephone call from the West Des Moines Police Department in April 2008 after their department received a call from a young woman who complained about a FedEx package containing "miscellaneous articles." The package had PLIC's return address label with the name Arpan Shah written on the label. For three days, Olson tried to locate Arpan Shah by inspecting all of the company's FedEx machines, and PLIC's personnel and visitor records. The search proved fruitless, which is unsurprising because PLIC ships as many as 2,000 packages a week with FedEx.
Four months later, PLIC received eight telephone calls from the concerned parents of young women who had received FedEx packages with the same return label. Olson recognized the label and decided to gather additional information from telephone numbers, addresses, and reverse searches on the Internet. He testified each package required "at least a good day, day and a half" to investigate because he also had to coordinate with local police and contact the recipients. Once Olson was able to recognize a pattern of activity, he and other employees were able to sift through billing records and the company's accounts payable ledgers to identify 93 suspicious packages that had been sent over the previous 18 months from a particular Kinko's establishment. In all, 13 contacts were received from "extremely upset" individuals who "wanted to know why Pacific Life was mailing out packages containing unopened Post-it notes, blank pieces of paper, Disneyland pencils and those kinds of things" to their daughters. In total, Olson estimated he spent 15 eight-hour days investigating Shah's activities.
Shah thoroughly cross-examined Olson regarding his duties as Chief Security Officer. He questioned Olson's investigative abilities and his failure to keep detailed time sheets. He also questioned PLIC's failure to change the misappropriated FedEx account number Shah repeatedly used. He did not call any witnesses on his own behalf. At the end of the hearing, the district attorney requested a total of $6,947.46 in restitution based on the 120 hours Olson spent investigating the crimes and two hours for his testimony at a rate of $50 per hour, plus $56.70 for Internet investigation and 790.76 for stolen property. The parties agreed Shah had already paid $790, which left a balance due of $6,157.46.
Shah's response to the request was cogent. He argued, "Mr. Olson was saying that from his indications that that was more of a general estimate, that through the course of a day he did perform some other job functions. [¶] And I did want to point out that Mr. Olson has been employed by Pacific Life Insurance for 16 years in this capacity, that it is his job description to perform security investigations, and that's what he routinely does. This is what Pacific Life has him for, to conduct investigations." In essence, Shah argued PLIC should not receive restitution for the time Olson spent investigating his crimes because PLIC hired Olson to perform investigations anyway and because Olson was a lousy investigator who failed to keep itemized time sheets.
The court rejected Shah's argument, but made no oral pronouncement concerning the total restitution due. The court's order reflects a balance of $6,847.46, plus 10 percent interest from the date of the loss, and it states the restitution is for the value of property stolen or damaged.
II
DISCUSSION
Restitution Amount
As noted, Shah relies on section 1202.4, subdivision (f)(3)(E) and People v. Friscia, supra, 18 Cal.App.4th 834. The Attorney General argues the court's authority to order restitution in this case arises from section 1203.1, not section 1202.4, citing People v. Anderson (2010) 50 Cal.4th 19. Neither argument convinces us, for reasons more fully explained below. Nevertheless, we affirm the court's restitution order as a valid exercise of discretion
Although we need not delve too deeply into the two restitution statutes to decide this case, a couple of points are worth mentioning. Under section 1203.1, the trial court retains broad discretion to impose reasonable conditions on probation in an effort to achieve justice, compensate for harm done to victims of crime, and provide for rehabilitation of the probationer. (§ 1203.1, subd. (j).) The statute does not impose a mandatory requirement for restitution in all cases, but states the trial court "shall provide for restitution in proper cases." (§ 1203.1, subd. (a)(3).) Nevertheless, restitution is considered "'"an effective rehabilitative penalty"'" precisely because it "'impresses upon the offender the gravity of the harm he has inflicted upon another, and provides an opportunity to make amends.' [Citation.]" (People v. Anderson, supra, 50 Cal.4th at p. 27.) With this purpose in mind, California courts have permitted orders for restitution as a condition of probation to include losses unrelated to the defendant's criminal conduct, losses arising from conduct that did not result in a criminal conviction, and for conduct related to dismissed counts and uncharged crimes. (Ibid.) Furthermore, "[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. [Citations.]" (Ibid.)
By contrast, section 1202.4 mandates restitution to the victim or victims of crimes whenever there has been an "economic loss as a result of the defendant's conduct." (§ 1202.4, subd.(f).) The statute specifies who may be considered victims and includes corporations and commercial entities "when that entity is a direct victim of a crime." (§ 1202.4, subd. (k)(2).) As the Anderson court observed, the two statutes have the same objective of criminal rehabilitation and victim compensation, but seek to attain these objectives in different ways. "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, supra, 50 Cal.4th at p. 29.)
The Attorney General reads Anderson as setting up some type of "prison cases" versus "probation cases" dichotomy that nothing in Anderson actually supports. Without appropriate citations or further development, it's an argument we consider dead on arrival. On the other hand, Shah has too narrowly focused on one subdivision of the more restrictive restitution statute, namely section 1202.4, subdivision (f)(3)(E). That section provides, in pertinent part, "To the extent possible, the restitution order shall be prepared by the sentencing court, shall indentify 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, 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."
While Shah may have a point with respect to the notion PLIC lost "wages" as a result of his crimes because Olson is paid to investigate on PLIC's behalf, his argument gets dodgy when we consider the notion of lost profits. A significant portion of Olson's time went into this particular investigation, time he could have spent investigating other, revenue generating claims on behalf of PLIC. Olson did not specifically identify what these other projects might have been, but the trial court recognized Shah's conduct caused Olson to be unavailable for other work. Time spent investigating Shah's crimes were an economic loss to PLIC as we understand the term, and the statutory language seems broad enough to permit the imposition of financial liability for this loss.
Furthermore, we question Shah's reliance on People v. Friscia, supra, 18 Cal.App.4th 834. In Friscia, the defendant pled guilty to embezzlement from a pre-school/kindergarten owned by two partners. (Id. at p. 835.) The restitution order of $48,743.50 included $11,112.50 for time the two partners spent putting the case together for the sheriff's department. (Id. at p. 836.) According to evidence presented at the hearing, the two partners spent considerable time searching through their accounting records, but they also continued to estimate the school's receipts and take their regular monthly draw based on this estimation. (Ibid.)
While the factual analogy between this case and Friscia seems apt, the Friscia court based its analysis on former section 1203.04. While it is true some provisions of section 1203.04 were later incorporated into section 1202.4, the latter section also reflects a legislative intent to grant courts broad discretion when awarding restitution for economic loses. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1135-1136; see also People v. Mearns (2002) 97 Cal.App.4th 493, 500-501.) Under this less restrictive approach, we conclude the trial court properly exercised its discretion by ordering Shah to compensate PLIC for Olson's investigative work because Shah's conduct diverted Olson from more profitable pursuits on behalf of his employer. Consequently, we find no abuse of the court's discretion and affirm the restitution amount ordered.
Former Penal Code section 1203.04 provided in relevant part: "(a) In every case where a person is convicted of a crime and is granted probation, the court shall require, as a condition of probation, that the person make restitution as follows: [¶] (1) To the victim, if the crime involved a victim . . . [¶] . . . [¶] (d) For purposes of paragraph (1) of subdivision (a), 'restitution' means full or partial payment for the value of stolen or damaged property, medical expenses, and wages or profits lost due to injury or to time spent as a witness or in assisting the police or prosecution . . . ." (Friscia, supra, 18 Cal.App.4th at p. 837.)
Waiver of Counsel
Although Shah had been represented by retained counsel when he entered his plea and for several other court appearances, and the court had at one time appointed the public defender for a sentencing modification, the public defender had been taken off the case prior to the restitution hearing.
Shah failed to timely appear for his contested restitution hearing. When he did appear in court sometime later in the day, he explained his tardiness as follows: "I had a concern about my attorney. I had retained an attorney from my criminal case and a public defender that was handling some other matters in the case. I didn't know which one would represent me." The court inquired, "Can you afford to hire an attorney?" Shah responded, "No, that is not correct. This case, I would like to represent myself." The court explained to Shah that his case had been called earlier in the day and observed that the public defender had been relieved before again asking Shah, "Can you afford to hire a lawyer?" Shah repeated, "No, I can't at the moment. I am willing to go ahead with pro se representation." After a brief recess, the parties agreed to a one-week continuance. There was no further discussion concerning Shah's decision to represent himself.
As the record demonstrates, the court accepted Shah's decision to proceed in propria persona at the restitution hearing and did not provide what may be termed the "standard" Faretta waiver (Faretta v. California (1974) 422 U.S. 806). Nor did the court advise Shah of the pitfalls of self-representation in a manner consistent with the warnings suggested in People v. Lopez (1977) 71 Cal.App.3d 568. The Attorney General's argument focuses on the stage of the proceedings, i.e., the differences between restitution hearings and other stages of criminal proceedings. However, we find this argument unpersuasive because the record is devoid of any discussion between the court and Shah about his decision to represent himself at any stage. Nevertheless, we reject Shah's contention that the error is not subject to harmless error analysis.
The Lopez court recommended the court advise the defendant that self-representation is "almost always unwise," and "'ultimately to his own detriment'"; (b) he or she will receive no special treatment by the court and must follow the rules of substantive law, criminal procedure and evidence throughout the proceedings; (c) the prosecution will be represented by a trained attorney who is not required to temper his or her performance on account of the defendant's lack of skill and experience; and (d) there will be no additional access to a library or additional time to prepare other than what is generally available to the self-represented. (People v. Lopez, supra, 71 Cal.App.3d at p. 572.) Moreover, the Lopez court recommended trial judges determine the defendant's education and familiarity with legal procedures, understanding of the legal proceedings, the potential defenses and punishments, the availability of appointed counsel at no cost, and the unavailability of a postjudgment claim of ineffective assistance of counsel. (Id. at p. 572-574.)
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As explained in People v. Burgener (2009) 46 Cal.4th 231, 243-245, the question of whether to apply harmless error analysis to cases involving the mutually exclusive rights of self-representation and appointed counsel is the subject of much debate in our state and federal courts. However, we believe the better course is to analyze such errors under the Chapman (Chapman v. California (1967) 386 U.S. 18) harmless beyond a reasonable doubt standard. (See People v. Burgener, supra, 46 Cal.4th at pp. 243-244; see also People v. Noriega (1997) 59 Cal.App.4th 311, 321.) In this case, any error was harmless.
Shah points to his tardiness and stated confusion over whether he was represented by the Public Defender or one of his previously retained private attorneys as evidence he would have requested counsel if prompted and properly warned. But the record rather clearly evinces Shah's desire to "go pro per," regardless of which attorney he claimed to be looking for when his case was called. Nor do we find the absence of counsel had any great impact on the proceedings. True, Shah's attempt to reduce the restitution award backfired, but there is nothing an attorney could have done to prevent or mitigate the increase in the amount ordered. The prosecution called Olson to testify to his efforts in determining the source of the FedEx packages. His testimony is sufficient to establish PLIC's loss. (See In re Carpenter (1995) 9 Cal.4th 634, 646 [trial court judges witness credibility]; People v. Cudjo (1993) 6 Cal.4th 585, 608-609 [testimony of a single witness is sufficient to support a judgment absent physical impossibility or obvious falsity].) Furthermore, Shah conducted a thorough cross-examination of Olson and capably articulated the same statutory argument he makes on appeal. In short, Shah fails to establish beyond a reasonable doubt that the absence of counsel at his restitution hearing resulted in any prejudice to his case.
III
DISPOSITION
The clerk of the court is directed to modify the order for restitution to reflect the amount due as $6,157.46, plus 10 percent interest from the date of the loss. The amount of restitution includes an award for the value of property stolen or damaged and for lost wages or profits. The clerk shall check the box for lost wages or profits in addition to the box for value of property stolen or damaged. In all other respects, the judgment is affirmed.
BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.