Opinion
C085650
08-02-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIDGETTE DAWN WALKER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CF00610)
Sentenced to five years of mandatory supervision following a plea agreement, defendant Bridgette Dawn Walker contends the trial court's order of victim restitution was an abuse of discretion. Defendant also contends the abstract of judgment must be corrected to reflect the counts on which she was actually sentenced. Agreeing only with her second contention, we shall order the abstract of judgment corrected and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A complaint charged defendant with seven counts of identity theft (counts 1-7; Pen. Code, § 530.5, subd. (a)), one count of grand theft (count 8; § 487, subd. (a)), one count of false personation (count 9; § 529), and one count of unauthorized use of personal identifying information with a prior conviction (count 10; § 530.5, subd. (c)(2)). The alleged victim in counts 1 through 7 was S.H.
Undesignated statutory references are to the Penal Code.
Defendant thereafter pleaded no contest to counts 1, 2, 3, and 10, in return for the dismissal of the remaining counts with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) for purposes of victim restitution. The maximum sentence under the agreement was five years in county jail. The parties stipulated the factual basis for the plea could be taken from the probation report.
The Butte County Sheriff's Office report, as summarized in the probation report, stated: "On December 17, 2016, at approximately 5:10 p.m., [S.H.] (victim #1) came to the Chico substation and reported her vehicle had been burglarized. . . . [T]he driver's side window had been shattered. The following items had been stolen from the vehicle. A purse; a jacket; a wallet; two debit cards; two credit cards; three checkbooks; her driver's license; $1,400.00 in cash; ten personal and business checks made out to her in amounts varying from $500.00 to $3,927.12; two pill containers with various prescription medications belonging to the victim and her partner; an automobile insurance card; and a medical insurance card. [¶] The victim provided the deputy a stolen property list, indicating an estimated loss of $14,103.90. She later reported the damage to her vehicle totaled an additional $2,157.25. [¶] The victim contacted her banks and credit card companies and reported the theft. The [credit card accounts] were subsequently closed. [¶] On December 18, 2016, a surveillance video at the Walmart store in Red Bluff recorded an individual, later identified as . . . defendant, cash a payroll check belonging to victim #1, in the amount of $762.92. The check had been stolen from the victim's vehicle. [¶] On December 18, 2016, a surveillance video at the Rolling Hills Casino in Corning recorded the defendant opening a payment account for $50.00. She used the driver's license belonging to victim #1 to open the account. [¶] [The same day], [s]he used the victim's driver's license as identification. [¶] On December 19, 2016, a surveillance video at a US Bank branch, located in a Safeway store in Redding, ' "recorded the defendant cashing a check written out to victim #1 [S.H.] in the amount of $720.00." ' [¶] On December 21, 2016, a surveillance video at the WinCo Foods store in Chico recorded the defendant purchasing $269.75 worth of items [using S.H.'s checking account]. [¶] On January 2, 2017, two transactions [using forged checks in S.H.'s name] were conducted at the Grocery Outlet store in Chico. [¶] . . . [¶] On January 15, 2017, the defendant used a forged check [in S.H.'s name] to pay for veterinary services at VCA Valley Oak Veterinary Center (victim #2), in Chico."
At sentencing, the trial court imposed an aggregate five-year sentence (three years, the upper term, on count 1, plus eight months consecutive on counts 2, 3, and 10), with all but one day of the term to be served on mandatory supervision. The court set victim restitution for further hearing.
For the restitution hearing, S.H. submitted a victim impact statement and a declaration.
The victim impact statement alleged total losses of "over $5,000 worth of cash and services," "over $3[,]000 in damage to my car, loss of cash and medications," and $18,225 as "the costs of my time, and staff time specifically in response to [defendant's] actions to contact banks, sheriffs, police, credit agencies, clients." A table attached to the statement itemized the sums claimed as lost cash and property. These amounts were totaled on the last page of the statement as $7,993 in "total damage [for] goods [and] services" and $18,225 in lost wages.
The declaration stated S.H. is an attorney who normally bills her time at $350 an hour. It devoted six pages to enumerating the "actions . . . taken to monitor and attempt to protect my credit report, and for the costs to repair my credit," and requested recovery of "wages lost due 'to time spent as a witness or in assisting the police or prosecution.' " The declaration stated S.H. could produce phone records and office alarm system records, if required, to substantiate certain amounts of time claimed, and S.H. had provided the district attorney with 82 pages of phone records and calendars.
At the victim restitution hearing, the trial court stated it had "reviewed the material provided previously, as well as the six-page declaration provided by [S.H.] substantiating the time that she incurred as a result of this crime." Defense counsel alleged that on one form S.H. had claimed an hourly billing rate of $250, not the $350 stated in the declaration. The court said it would use the $250 per hour rate.
This might be the form submitted to the sheriff's deputy and cited in the probation report, but not included in the appellate record.
Defense counsel asserted S.H.'s documentation failed to show entitlement to compensation for lost time and wages at her professional billing rate. According to counsel, all S.H. had done was to demonstrate "ministerial" efforts in contacting banks and businesses, and had not documented that she lost business by taking the time to do those things; therefore she should be compensated for those efforts at $20 to $30 per hour. After raising that objection, counsel submitted the matter.
The trial court ordered restitution to S.H. as follows: "As to goods and services, actual losses, and charges related to identity theft based on the statement of [S.H.] dated March 23rd, 2017, the Court is ordering restitution in the amount of $7,993. [¶] The Court also has reviewed the declaration provided by [S.H.] documenting the time spent to attend to the damage to her credit, as a result of the identity theft to document her losses and for court appearance among other things, and [S.H.] is requesting $14,000. And the court finds based on all of the information provided that that amount is properly and sufficiently documented and is reasonable. [¶] [S.H.] is also awarded $4,225 for wages paid to her employee/clerk to address the above issues. The total amount of restitution to be ordered to [S.H.] at this time is $26,218." The court retained jurisdiction to set or otherwise modify the amount of restitution.
The documentation breaking the costs down as $14,000 for the victim's time and $4,225 for wages paid to the victim's employee is not in the record. (See fn. 2.)
DISCUSSION
I
Victim Restitution
Defendant contends the trial court abused its discretion as to the award of $14,000 for lost time and wages because there was no evidence the victim's lost time resulted in an actual economic loss. This contention fails.
"[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 . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court." (§ 1202.4, subd. (f).) The restitution order "shall be of a dollar amount that is 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).)
At a victim restitution hearing, the People may make a prima facie case for restitution based on the victim's testimony or on some other claim or statement as to the amount of his or her economic loss. (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) "A property owner's statements in the probation report about the value of [his or] her property should be accepted as prima facie evidence of value for purposes of restitution. [Citation.]" (People v. Foster (1993) 14 Cal.App.4th 939, 946-947 (Foster); accord, People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).)
Once the People have made a prima facie case for restitution, the burden shifts to the defendant to "demonstrate" the true amount of the loss is different from that claimed by the victim. (Millard, supra, 175 Cal.App.4th at p. 26; see also People v. Giordano (2007) 42 Cal.4th 644, 664 (Giordano).) The standard of proof at the hearing is preponderance of the evidence. (Millard, supra, at p. 26.)
We review the trial court's restitution order for abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) We presume the judgment correct, and to set it aside an appellant must affirmatively show error. (Id. at p. 666.) If the court used a rational method of determining the victim's loss, so that the order is not arbitrary or capricious, we will uphold the order. (Id. at p. 665; People v. Garcia (2011) 194 Cal.App.4th 612, 617.) Factors necessary to the court's determination depend on the particular circumstances before the court. (Giordano, at p. 665.)
Defendant presented no evidence to rebut the victim's claim as to her total number of hours lost. Nor did defendant present any evidence the victim's billing rate for the time she could not devote to her work was other than the $250 per hour the trial court used. Defendant's counsel merely asserted the victim lost only the time needed to perform the "ministerial" task of contacting banks and businesses and therefore should be compensated only at a clerk's rate. That assertion was insufficient to demonstrate the true amount of the victim's loss was other than she claimed. (Millard, supra, 175 Cal.App.4th at p. 26.)
So far as defendant claimed without supporting evidence that the victim's documentation was inadequate, that claim also misapprehended defendant's burden of proof. Once the victim had provided an estimate of her losses, the burden shifted to defendant to rebut that estimate with actual evidence. There is no requirement that the estimate be precisely documented: it establishes a prima facie case, and if unrebutted by evidence, the trial court is entitled to accept that case as sufficient. (Cf. Gemelli, supra, 161 Cal.App.4th at p. 1543; Foster, supra, 14 Cal.App.4th at pp. 946-947.) Defendant presented no rebuttal evidence.
On appeal, defendant attacks the victim's documentation with greater specificity than her trial counsel did, but her argument still misconceives her burden of proof. Thus, she asserts: "While S.H. . . . indicated she made a ' "good faith effort" ' to report her lost time as an attorney, and further indicated she ' "turned down cases and refunded some clients knowing [her] time was taken up by [defendant's] actions (S.H. Declaration, para. 21 []), there was no showing that any of the time S.H. spent, as documented in her declaration, resulted in an actual loss of her own wages or profits to her business." ' " But defendant cites no authority holding a victim's estimate of lost wages and profits is legally insufficient unless it includes a breakdown precisely correlating lost time with lost wages or profits. Defendant relies on People v. Friscia (1993) 18 Cal.App.4th 834 (Friscia), but her reliance is misplaced.
In Friscia, the victims, who ran a preschool/kindergarten from which the defendant had embezzled, claimed $11,112.50 for their time spent "putting the case together for the sheriff's department." (Friscia, supra, 18 Cal.App.4th at p. 836.) However, "[w]hile the considerable time spent on the accounting [of the amount of loss from the embezzlement] took away from [the victims'] duties at the school, there is no evidence in the record that it reduced their salary or profit. [The victims] would estimate the receipts and take a monthly draw based on that assessment. During their testimony [at the restitution hearing], there was no indication that this practice was interrupted during the accounting." (Ibid.) In other words, the victims' own showing refuted their claim for lost profit. In our case, it did not.
Unlike in Friscia, there was no evidence the victim here had any source of income other than her day-to-day activity retaining and representing clients. Reviewing the trial court's ruling for abuse of discretion, we must draw all reasonable inferences in support of the court's findings. (Millard, supra, 175 Cal.App.4th at p. 26.) It is a reasonable inference, unrebutted by any evidence in the record, that whatever time the victim had to take away from her normal professional activities to try to repair the damage wrought by defendant was time that could not be devoted to working on her clients' behalf or seeking new business. Thus, contrary to defendant's assertion, Friscia is not on point.
Defendant has not shown the restitution order was an abuse of discretion.
II
Abstract of Judgment
Defendant contends the abstract of judgment requires correction. The Attorney General agrees, and so do we.
As indicated above, defendant's plea of no contest included counts 1, 2, 3, and 10. It did not include count 8 (grand theft). But the abstract of judgment erroneously shows a conviction on count 8 and does not show a conviction on count 3. We shall direct the trial court to prepare a corrected abstract of judgment reflecting defendant's conviction on count 3 and eliminating her purported conviction on count 8.
DISPOSITION
The clerk of the superior court is directed to prepare a corrected abstract of judgment as indicated in part II of the discussion and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
ROBIE, J.