John L. Staley, under the appointment by Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD259043) APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed. John L. Staley, under the appointment by Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Karl Eric Winchell, a jewelry store owner who sold jewelry on consignment, was convicted by a jury of one count of grand theft (Pen. Code, § 487, subd. (a)) and nine counts of embezzlement (§ 506) involving property or funds he misappropriated from different victims. The jury found that the value of the property misappropriated was more than $100,000 and less than $500,000. Winchell was sentenced to prison, but the court suspended execution of the sentence and placed him on formal probation for five years. The court also conducted a hearing to determine the amount of victim restitution (§ 1202.4, subd. (f)), ultimately ordering restitution in the total amount of $111,200. Winchell now appeals the restitution order, arguing that (1) he was deprived of his right to a jury trial on the amount set by the restitution order, and (2) there was inadequate evidence to support the amount set by the court.
Further statutory references are to the Penal Code unless otherwise indicated.
We draw the background facts from the opinion recently filed by this court, which affirmed the operative convictions in Winchell's related appeal. (People v. Winchell (Oct. 25, 2017, D069152) [nonpub. opn.] (Winchell).)
Winchell operated a jewelry store in La Jolla, which included selling jewelry on consignment. Seven of his victims were customers who gave him jewelry to sell on consignment but then never received either the return of the jewelry or money from its sale. An eighth victim gave Winchell $38,000 to purchase a ring but never received either the ring or the return of his money.
1. Right to a Jury Trial
At trial the victims testified regarding the value of the property or funds they entrusted to Winchell. (Winchell, supra, 2017 Cal.App. Unpub. Lexis 7324.) At the restitution hearing, the court also received and relied on each party's written restitution memorandum, which included a summary of the economic losses suffered by each of the victims and documentation supporting those summaries. The court ordered Winchell to pay restitution to eight separate victims.
Specifically, it ordered Winchell to pay restitution as follows: (1) $12,150 to victim Austin (count 2); (2) $33,380 to victim Emerson (count 11); (3) $2,275 to victim Stores (count 14); (4) $40,245 to victim Braun (counts 30-31); (5) $10,000 to victim Kagnoff (count 44); (6) $1,900 to victim Winter (count 58); (7) $2,850 to victim Cohen (count 61); and (8) $8,400 to victim Moulton (count 64).
a. The Apprendi Claim
Winchell contends the trial court erred by making factual findings regarding the loss sustained by each victim because such findings had to be made by the jury under the rationale of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny, including Southern Union Co. v. United States (2012) 567 U.S. 343 (Southern Union). Numerous courts, however—including this court (see People v. Millard (2009) 175 Cal.App.4th 7, 35-36)—have rejected this identical claim. (See People v. Pangan (2013) 213 Cal.App.4th 574, 585-586 [neither Apprendi nor Southern Union applies to determination of direct victim restitution amounts because direct victim restitution is not a criminal penalty]; People v. Wasbotten (2014) 225 Cal.App.4th 306, 308-309 [citing numerous state and federal cases holding "neither Southern Union, Apprendi, nor Blakely have any application to direct victim restitution, because direct victim restitution is not a criminal penalty"].) Winchell argues those cases were wrongly decided because they characterized victim restitution as a substitute for a civil remedy, rather than something that imposed an increased punishment, which is inconsistent with Southern Union. But we agree with the analysis in People v. Pangan, supra, 213 Cal.App.4th 574, where the court explained that:
"Southern Union involved a restitution fine of $50,000 a day for each day of a putative 762-day-long environmental law violation. The United States Supreme Court struck the fine down because the very fact which determined the 'maximum fine' the corporate defendant faced—the number of days the violation continued—was not determined by the jury. [Citation.] [¶] Apprendi held that any fact which increases a defendant's sentence beyond the 'statutory maximum' must go to the jury. [Citation.] And Blakely was a gloss on Apprendi, holding that the statutory maximum under Apprendi was the maximum sentence a judge could impose based on facts reflected in the jury verdict or admitted by the defendant. [Citation.] [¶] But neither Southern Union, Apprendi or Blakely have any application to direct victim restitution, because direct victim restitution is not a criminal penalty. As explained in United States v. Behrman (7th Cir. 2000) 235 F.3d 1049, 1054, direct victim restitution is a substitute for a civil remedy so that victims of crime do not need to file separate civil suits. It is not increased 'punishment.' The Millard decision makes the same point in regard to California law . . . . And we would note the restitution statute itself characterizes victim restitution awards as civil." (People v. Pangan, supra, 213 Cal.App.4th at p. 585.)We find no reason to depart from this line of authority, and therefore reject Winchell's Apprendi claim.
b. California Constitutional Claim
Winchell alternatively asserts that even assuming restitution is characterized as a civil rather than criminal penalty, he was improperly denied a jury trial under Article I, section 16 of the California Constitution, which guarantees the right to trial by jury in a civil action. (DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 176; Salisbury v. County of Orange (2005) 131 Cal.App.4th 756, 764.) Although "[t]he right to a trial by jury as declared by section 16 of Article I of the California Constitution shall be preserved to the parties inviolate," (Code Civ. Proc., § 631, subd. (a)), it is well recognized that "[t]he right to a jury trial in civil proceedings is different from the right to a jury trial in criminal proceedings. In civil cases, the right may be forfeited through nonassertion or by conduct [citing Code Civ. Proc., § 631, subds. (a) & (f)]; . . . ." (People v. $2,709 United States Currency (2014) 231 Cal.App.4th 1278, 1285.) "In civil cases, a jury may only be waived pursuant to subdivision (f) . . . ." (Code Civ. Proc., § 631, subd. (a).) However, that subdivision provides that "[a] party waives trial by jury . . . [b]y failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation." (Id., at subd. (f)(4).)
Winchell cites nothing to suggest that he or his counsel ever made any request (timely or otherwise), that the restitution issues be tried to a jury. Under these circumstances, even assuming Winchell had a right to have a jury empaneled to try the issues covered by section 1202.4 , his failure to make the request waived any claim of error. (Cf. Escamilla v. California Ins. Guarantee Assn. (1983) 150 Cal.App.3d 53, 61-62 [conduct of counsel in remaining silent waived jury trial]; People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084 [jury trial waived where no demand was timely interposed because "parties have an affirmative duty to timely assert their rights in order to avoid a finding that they waived or forfeited those rights"].)
Winchell's argument on appeal seems to posit that, if cases such as People v. Millard, supra, 175 Cal.App.4th 7 correctly determined that proceedings under section 1202.4 do not implicate Apprendi protections, such proceedings necessarily trigger the right to a jury trial under Article I, section 16 of the California Constitution, and that we may reach the issue under the rubric of ineffective assistance of counsel. However, it appears that California courts, both before and after Apprendi, have long concluded there is no right to a jury trial under California law in proceedings conducted to determine the appropriate victim restitution order. (See People v. Baumann (1985) 176 Cal.App.3d 67, 80 [no right to jury trial on amount]; People v. Rivera (1989) 212 Cal.App.3d 1153, 1160-1161; People v. Narron (1987) 192 Cal.App.3d 724, 737; People v. Smith (2011) 198 Cal.App.4th 415, 433 ["a restitution order for noneconomic damages does not give rise to a jury trial right"].)
Accordingly, the trial court did not err in failing to provide Winchell with a jury trial as to the amount of restitution.
2. The Amount of Restitution
Winchell appears to raise two challenges to the amount of the restitution order. He first contends that, although he was granted probation, the court's order showed it did not calculate the amount of restitution premised on the goal of fostering his rehabilitation under section 1203.1, but instead employed the standards of section 1202.4 by calculating restitution based on the amount of losses caused by his criminal conduct. From that predicate, Winchell argues that the victims' restitution amounts should have been limited to the proximate harm to the victims caused by his crimes. Because he would have received a 10-percent commission for selling the jewelry, he claims the victims' losses should be reduced by that 10 percent. He also maintains that the $23,000 in restitution he was ordered to pay to victim Emerson should have been reduced to $6,800 because the latter amount was the actual retail lower price of the property.
We reject Winchell's first claim because we do not accept his predicate that the court relied solely on section 1202.4 in valuing the amount of the losses. Here, Winchell was granted probation. When a court grants probation, cases such as People v. Tucker (1995) 37 Cal.App.4th 1 teach that a court has broad discretion as to the amount of restitution, which is not cabined by the value of the property at the time of the offense but may include consideration of its current value. (Id. at pp. 4-7.) Moreover, the court in People v. Carbajal (1995) 10 Cal.4th 1114 rejected the claim that the adoption of Article I, section 28, and its implementing legislation was intended to limit or abrogate the trial court's discretion under section 1203.1 to order restitution beyond losses strictly resulting from the crime underlying the defendant's conviction. (Carbajal, at pp. 1122-1123.)
Thus, the trial court had considerable discretion in fashioning its restitution award, and Winchell cites nothing that precluded the court from employing, for example, the "replacement cost" standard identified in section 1202.4, subdivision (f)(3)(A). We are unpersuaded by Winchell's argument that seizes upon language in the court's order he interprets as demonstrating the court did not use the standards permitted by section 1203.1. Winchell's reasoning ignores the maxim of appellate review that, absent an indication in the record expressly showing the trial court misunderstood or misapplied the law, we will presume the court acted properly. (See, e.g., People v. Sangani (1994) 22 Cal.App.4th 1120, 1138.) Here, the cited snippet does not expressly show the trial court misunderstood or misapplied the law. Moreover, a review of the transcript as a whole shows the trial court did understand the correct standards governing its determination: it declared it intended to follow the procedure set out in sections 1202.4 and 1203 .1, it specifically referred to People v. Carbajal, supra, 10 Cal.4th 1114, and it subsequently also specifically cited People v. Tucker, supra, 37 Cal.App.4th 1, when describing its "broad discretion in determining factors such as market value . . . ."
Winchell cites the restitution order's prefatory language that stated "the Court, having reviewed the evidence in support of victims' claims for restitution as a result of Defendant Winchell's criminal conduct, finds that the defendant shall make restitution as follows . . . " and construes the emphasized language as showing the court based the restitution award on the victims' losses under section 1202.4 rather than in furtherance of any rehabilitative purpose under section 1203.1. --------
An order for restitution is reviewed for an abuse of discretion, whether that award is under section 1203.1 (People v. Anderson (2010) 50 Cal.4th 19, 32) or 1202.4 (People v. Millard, supra, 175 Cal.App.4th at p. 26). That standard requires this court to affirm the order when there is a factual and rational basis for the amount ordered. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1391 [order under section 1203.1]; Millard, at p. 26 [order under section 1202.4].) There was substantial evidence providing a factual, rational basis for the amounts ordered. The court received and considered the probation officer's report and the prosecutor's restitution memorandum containing estimates from numerous victims of the economic losses the victims claimed were caused by Winchell, and the amounts ordered by the court as specific restitution mirrored those estimates. A trial court may base its restitution order on the probation officer's report recommending restitution (People v. Campbell (1994) 21 Cal.App.4th 825, 831) and "may accept a property owner's statement made in a probation report about the value of stolen or damaged property as prima facie evidence of loss." (People v. Tabb (2009) 170 Cal.App.4th 1142, 1154.) We agree that the prosecutor's memorandum and probation officer's report provided substantial evidence supporting the court's restitution order.
Winchell finally claims the $23,000 he was ordered to pay to victim Emerson should have been reduced to $6,800 because the evidence showed that was the actual retail value of the ring. Here, however, Emerson provided the court with a jeweler's appraisal opining that a "fair and reasonable" retail value for the ring was $23,400, premised in part on recent auction sales of large star sapphire, diamond and platinum rings similar to the ring taken by Winchell. Although Winchell provided a contrary opinion from a loose gemstone dealer that the sapphire stone would be worth only $6,800 retail based on its description, the trial court was entitled to credit the higher value because Emerson's appraisal accounted for the sapphire in its platinum and 0.60 total carat diamond ring setting rather than merely the sale of a loose star sapphire gem. The court's decision to select the higher auction price for that jewelry piece as more accurate than an opinion about the sapphire as a loose gem was not an abuse of its discretion. (In re Johnny M., supra, 100 Cal.App.4th at p. 1132 [victim's restitution right to be broadly and liberally construed; no abuse of discretion when factual and rational basis establishes restitution amount].)
The judgment is affirmed.
DATO, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.