Opinion
E066103
04-26-2018
THE PEOPLE, Plaintiff and Respondent, v. WHANITA ROSE FAWCETT, Defendant and Appellant.
D. Inder Comar, 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, Peter Quon, Jr., Anthony Da Silva and Garrett Beaumont, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1502221) OPINION APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed in part, remanded with directions in part. D. Inder Comar, 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, Peter Quon, Jr., Anthony Da Silva and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Whanita Rose Fawcett pled no contest to committing perjury by false application for aid (Pen. Code, § 118). In exchange, the remaining allegations were dismissed and defendant was placed on formal probation for a period of three years on various terms and conditions, including serving 270 days on work release and imposition of victim restitution following a victim restitution hearing. Following a restitution hearing, the trial court ordered defendant to pay victim restitution in the amount of $17,193.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argues: (1) the trial court violated the plea agreement when it awarded victim restitution to the Housing Authority for rental payments made prior to June 2015; (2) the trial court abused its discretion when it awarded restitution for rental payments made prior to April 2015 because the record contains a typographical error; and (3) the trial court abused its discretion when it calculated restitution based on an improper legal theory.
After a thorough review of the record, we will remand the matter to allow the trial court to determine the exact period of victim restitution and make any necessary corrections to the amount of the restitution order based on clarification by the parties. In all other respects, we affirm the judgment.
Defendant has also filed a writ of habeas corpus petition, case No. E069377. The habeas corpus petition will be considered with this appeal for the sole purpose of determining whether an order to show cause should issue and will be disposed of by a separate order. In addition, on November 3, 2017, defendant filed a request for judicial notice. That request is hereby denied. (People v. Hardy (1992) 2 Cal.4th 86, 134.)
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the police report, the probation department's restitution memorandum, and the restitution hearing.
Defendant had been residing in a home on Bluegrass Place in Victorville since July 15, 2011, and had been receiving monthly housing assistance payments (HAP) from the San Bernardino County Housing Authority (Housing Authority). When applying for HAP, recipients must sign a disclosure questionnaire under penalty of perjury listing everyone who lives with them, any criminal activity that occurs within the residence, any new people moving into the home, and any additional sources of income, and must thereafter report any changes within 10 days.
Through investigation, the Housing Authority discovered that defendant had allowed several people, some of whom were involved in criminal activity, to live in her residence while she was receiving HAP. Defendant also received additional sources of income. Through further investigation, defendant was found to have defrauded the Housing Authority over $950 for unauthorized tenants living in her home while she received HAP.
Defendant signed the disclosure questionnaire under penalty of perjury. The Housing Authority learned on April 14, 2015, that defendant never disclosed that two men, Nikiea Willis or Jamal Scott, as ever residing in the home. Defendant again failed to disclose these two unauthorized tenants when she filled out the disclosure questionnaire on June 15, 2015. Housing Authority Program Integrity Officer Anna Rico reported that restitution is calculated from the time an unauthorized tenant is found to be living in the home and the Housing Authority discovers the nondisclosure and terminates the HAP. Willis used defendant's home address in Victorville as his place of residence in October 2013.
On September 10, 2015, a felony complaint was filed charging defendant with receiving aid by misrepresentation of more than $950 (Welf. & Inst. Code, § 10980, subd. (c)(2); count 1), grand theft of more $950 (Pen. Code, § 487, subd. (a); count 2), and perjury by false application for aid (Pen. Code, § 118 & Welf. & Inst. Code, § 11265; count 3). All three of the charges alleged the offenses occurred "[o]n or about July 2, 2015."
On November 16, 2015, defendant pled no contest to perjury by false application for aid (count 3) in exchange for dismissal of counts 1 and 2, and three years' formal probation on stated conditions, including serving 270 days on work release and victim restitution to be imposed following a victim restitution hearing. In her plea form, defendant initialed box 15(c) which provided: "(Harvey Waiver) I waive my rights regarding dismissed counts and/or allegation(s) and any charges the district attorney agrees not to file to the extent that the Court may consider these factors in deciding whether or not to grant probation and in deciding whether or not to impose a midterm, aggravated or mitigated prison term, the appropriate presentence credits, and as to restitution."
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
On December 14, 2015, the probation department filed a restitution memo. According to the memorandum, the Housing Authority submitted a restitution claim to the probation department in the amount of $23,427. The amount represented $22,977 in housing payments made to defendant's landlord for two years beginning on October 1, 2013, and continuing through October 1, 2015, plus $450 the Housing Authority incurred in investigation costs.
A restitution hearing was held on May 13, 2016. At that time, Housing Authority Program Integrity Officer Rico testified to the basis for the Housing Authority's restitution claim. Rico stated that she had reviewed the police report and other documents to determine when defendant would have been ineligible for HAP. In reviewing these reports, Rico determined that Nikiea Willis had told child protective services sometime in October 2013 that he was living at defendant's address in Victorville at that time, and defendant had not disclosed his name on her disclosure application. Additionally, in reviewing the reports, Rico discovered that another person by the name of Jamal Scott had told police he was living at defendant's residence at some point, and defendant failed to disclose his name in her disclosure application. Based on her review of these statements in the police reports, Rico determined the Housing Authority was owed restitution starting in October 2013. Rico's conclusion was based on the fact that defendant's residence was rented through a federally subsidized housing program pursuant to which the landlord for an aid recipient receives funds from the Housing Authority to cover a portion of the rent. One of the program's requirements is that residents must disclose information about their household income and the individuals who reside with them. Defendant's disclosure questionnaires from an unknown month in 2014 and June 2015 did not include Willis or Scott among the list of household tenants.
Willis testified on behalf of the defense. Willis stated that he had an "off and on" relationship with defendant since 2011 and that he would stay at defendant's residence overnight on occasion. Willis, however, claimed he had resided at another address since September 2011, and had never lived at Bluegrass Place and had never had the post office forward any mail to Bluegrass Place. Willis further testified that he never came across Scott when he visited defendant's residence.
At the conclusion of the testimony, the trial court reviewed the police report in order to determine an appropriate start date for the restitution award. According to the report, defendant first came to the attention of police when she, Willis, and Holly W. were arrested at the Bluegrass Place residence on March 24, 2015. As a result of the ensuing investigation, one of the deputies involved in the arrest learned that defendant's home was part of the "Housing Choice Voucher Program," formerly known as Section 8. Accordingly, the deputy alerted the Housing Authority about the arrest. A deputy "contacted Scott in one of the bedrooms at the residence on 3/24/14," and "Scott admitted he lived at the residence during his interview." The Housing Authority subsequently mailed a disclosure questionnaire under penalty of perjury to defendant. Defendant filled out a questionnaire on April 14, 2015, and again on June 15, 2015. Defendant did not indicate that Willis or Scott were residing at the Bluegrass residence on either of the disclosure questionnaires.
Law enforcement thereafter requested a search warrant and executed it on July 2, 2015. Twenty-two people were found in the residence. Defendant and Willis were not initially there, but they arrived shortly thereafter. Based on police interviews, several undeclared people other than Willis or Scott were living in the home as of that date. When questioned, Willis, defendant, and one of defendant's children all denied Willis was currently living at the residence. Defendant and Willis, however, both stated at one point that Willis had lived at the Bluegrass Place residence on and off in the past. Defendant also denied that Scott was currently living in the residence, and described him as a " 'floater.' " Defendant's daughter, however, told police that Scott had lived in the residence "for a very short time."
At the conclusion of the hearing, the trial court declined to select October 2013 as the start date for calculating restitution. The court found the prosecution failed to establish that defendant willfully allowed Willis to use her address as of that date. Instead, relying on the statements in the police report that a deputy had contacted Scott at defendant's residence in March 2014, the trial court found that Scott was living at the Bluegrass residence on March 24, 2014, and ordered defendant to pay $17,193 to the Housing Authority at a rate of $40 a month. The award represented full reimbursement to the Housing Authority of all payments made to defendant's landlord from April 1, 2014 through October 1, 2015, plus a $450 investigative fee.
In the reporter's transcript of the May 13, 2016 restitution hearing, the date on which Scott was contacted and/or admitted to living at the Bluegrass Place residence is given by the court and by the People's counsel as March 24, 2014, March 14, 2014, and March 24, 2015. In the police report, it is listed as March 24, 2014.
III
DISCUSSION
For various reasons, defendant argues the trial court erred in ordering her to pay victim restitution in the amount of $17,193 to the Housing Authority.
A. Applicable Legal Principles
Defendant's restitution was ordered as a condition of her probation under section 1203.1. Section 1203.1 "gives trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety. ([People v.] Carbajal [(1995)] 10 Cal.4th [1114,] 1120 [(Carbajal)].) The court may impose upon probationers 'reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . .' (§ 1203.1, subd. (j).)" (People v. Anderson (2010) 50 Cal.4th 19, 26 (Anderson).)
A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 384 (Olguin); Carbajal, supra, 10 Cal.4th at p. 1121; People v. Lent (1975) 15 Cal.3d 481, 486.) Probation is "an act of clemency and grace" (People v. Rodriguez (1990) 51 Cal.3d 437, 445), not a matter of right (People v. Rubics (2006) 136 Cal.App.4th 452, 459, overruled on another ground by People v. Martinez (2017) 2 Cal.5th 1093, 1107, fn. 3). "Because a defendant has no right to probation, the trial court can impose probation conditions that it could not otherwise impose, so long as the conditions are not invalid under the three Lent criteria." (Rubics, at p. 460.) If the defendant finds the conditions of probation more onerous than the sentence he would otherwise face, he may refuse probation. (Anderson, supra, 50 Cal.4th at p. 32; Olguin, at p. 379.)
"Restitution as a condition of probation has always been expressly authorized by section 1203.1." (Anderson, supra, 50 Cal.4th at p. 27.) "While restitution under section 1203.1 may serve to compensate the victim of a crime, it also addresses the broader probationary goal of rehabilitating the defendant. ' "Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused." ' (Carbajal, supra, 10 Cal.4th at p. 1124.)" (Anderson, at p. 27.)
The California Constitution provides that crime victims have a right to restitution when they suffer losses as a result of criminal activity. (Cal. Const., art I, § 28, subd. (b)(13)(A) & (B); see People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) This constitutional mandate is implemented by section 1202.4 (see Giordano, at p. 656), which provides in pertinent part: "in 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 or victims in an amount established by court order, based on the amount of loss claimed by the victim . . . ." (§ 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).) Moreover, because section 1202.4 uses the language "including, but not limited to [the enumerated losses]" (§ 1202.4, subd. (f)(3)), a trial court may "compensate a victim for any economic loss which is proved to be the direct result of the defendant's criminal behavior, even if not specifically enumerated in the statute" (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046), and should construe the statute broadly and liberally to compensate a victim for any economic loss which is proved to be the direct result of the defendant's criminal behavior. (See, e.g., People v. Moore (2009) 177 Cal.App.4th 1229, 1232 and People v. Crisler (2008) 165 Cal.App.4th 1503, 1508.) A government agency may qualify as a victim of crime for the purpose of awarding restitution. (People v. Crow (1993) 6 Cal.4th 952 (Crow).)
Since the enactment of mandatory direct victim statutes, "[t]rial courts continue to retain authority to impose restitution as a condition of probation in circumstances not otherwise dictated by section 1202.4." (Anderson, supra, 50 Cal.4th at p. 29.) In both sections 1203.1 and 1202.4, restitution serves the purposes of both criminal rehabilitation and victim compensation. But the statutory schemes treat those goals differently. 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 encourage a defendant's reformation as the circumstances of his or her case require. (Anderson, at p. 29.)
The standard of proof at a restitution hearing is preponderance of the evidence, not proof beyond a reasonable doubt. (See People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) "Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. [Citation.] The defendant has the burden of rebutting the victim's statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]" (Id. at p. 1543.)
On appeal, we review a trial court's restitution order for abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) The abuse of discretion standard " 'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.] Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the [ ] victim's economic loss." (Giordano, at pp. 663-664.)
B. Violation of Plea Agreement
Defendant first argues the trial court violated the plea agreement when it awarded restitution to the Housing Authority for rental payments made prior to June 2015. Specifically, defendant asserts she pled no contest to count 3 and "signed a limited Harvey waiver which did not mention or reference uncharged or unrelated conduct." Accordingly, "[t]he trial court erred when it awarded restitution based on such uncharged and transactionally unrelated conduct." We disagree.
Section 1192.3, subdivision (b), requires a so-called Harvey waiver before restitution can be ordered on some counts dismissed pursuant to a plea bargain. That subdivision provides: "If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, as described in this section, the court shall obtain a waiver pursuant to [Harvey, supra,] 25 Cal.3d 754 from the defendant as to the dismissed count." (§ 1192.3, subd. (b), italics added.)
In Harvey, supra, 25 Cal.3d 754, it was held that while "[i]mplicit in . . . a plea bargain . . . is the understanding . . . that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count," (id. at p. 758) such adverse sentencing consequences may properly be imposed if there was agreement to the contrary. This "contrary agreement" proviso is what has since been called a "Harvey waiver." (People v. Goulart (1990) 224 Cal.App.3d 71, 80 (Goulart).) Goulart held that "A defendant who signs the typical waiver form agrees to allow the sentencing judge to consider his entire criminal history, including any unfiled or dismissed charges." (Ibid.; see People v. Snow (2012) 205 Cal.App.4th 932, 937 (Snow).)
Although Harvey was concerned with a prison sentence, its waiver rule applies as well to probationary conditions. "[W]hen under a plea agreement a defendant pleads guilty to one or more charges in exchange for dismissal of one or more charges, the trial court cannot, in placing the defendant on probation, impose conditions that are based solely on the dismissed charge or charges unless the defendant agreed to them or unless there is a 'transactional' relationship between the charge or charges to which the defendant pled and the facts of the dismissed charge or charges." (People v. Martin (2010) 51 Cal.4th 75, 82 (Martin).) "[A] negotiated plea agreement is in the nature of a contract. Thus, when the trial court accepts it, the agreement is binding on the parties and the court." (Id. at p. 80.)
For example, in Snow, supra, 205 CalApp.4th 932, the appellate court affirmed the trial court's order of restitution to the victim of false imprisonment for a dental crown defendant knocked out of her mouth in a uncharged assault defendant committed two years before the offense of conviction because (1) "defendant's past prior violence . . . was a circumstance that is directly related to his false imprisonment of the victim as it contributed to the element of menace and vitiated the victim's consent" and (2) "requiring restitution for the dental crown serves the goal of deterring future assaultive conduct by defendant against the victim or anyone else with whom he establishes an intimate relationship." (Id. at p. 940.)
Defendant argues the trial court violated the plea agreement when it awarded restitution to the Housing Authority for rental payments made prior to June 2015 because the complaint alleged that all three counts occurred " 'on or about July 2, 2015,' " the only disclosure questionnaire mentioned in the police report was the questionnaire signed by defendant on June 15, 2015, and the Harvey waiver did not include "unfiled charges." Defendant also asserts the plea agreement prevented the trial court from using the police report as a factual basis for its restitution award. We are not persuaded. Clearly, the agreement contemplated that restitution could be based on the facts underlying the three counts. But, there is nothing in the record to show the plea agreement barred the trial court from either considering defendant's conduct before July 2, 2015, or the police report when determining the amount of restitution to be awarded as a condition of defendant's probation. Defendant's Harvey waiver expressly waived her "rights regarding . . . any charges the district attorney agrees not to file to the extent that the Court may consider these factors in deciding . . . restitution."
In Snow, the defendant, charged with a number of offenses involving domestic abuse of the victim, pled no contest to a count of false imprisonment pursuant to a plea agreement under which a number of other charges and allegations were dismissed with a Harvey waiver for purposes of restitution. (Snow, supra, 205 Cal.App.4th at p. 937.) On appeal, the defendant challenged a restitution order requiring him to pay the victim's medical and related expenses resulting from his conduct, including expenses associated with an uncharged incident. As emphasized in Harvey, and reiterated in Martin, " '[a]n implied term of a plea agreement is that a defendant will not be adversely affected "by reason of the facts underlying, and solely pertaining to, the dismissed count." ' " (Snow, at p. 938, italics omitted, quoting Martin, supra, 51 Cal.4th at p. 81.) The Snow court stated that "the foundational basis for the Harvey rule is the reasonable expectations of the parties concerning counts dismissed as part of the plea bargain. (People v. Franco (1986) 181 Cal.App.3d 342, 349.)" (Snow, at p. 938.) The Harvey waiver in Snow expressly referred to the enumerated dismissed counts but made no reference to uncharged offenses. (Snow, at p. 937.) The court concluded, "The November 2005 incident was not charged in the information and thus, was not dismissed as part of the plea agreement. And since that incident was not dismissed as part of the negotiated resolution, there is no implied term of the agreement barring that incident's use by the trial court." (Id. at p. 938.)
Accordingly, under California law, trial courts may award restitution as a condition of probation based on uncharged conduct related to the charged offenses. Indeed, it is well settled that restitution as a condition of probation may be ordered for uncharged conduct, including conduct for which the statute of limitations has run, as long as that conduct is reasonably related to the crime the defendant committed or to future criminality. (Goulart, supra, 224 Cal.App.3d at pp. 78-79; People v. Percelle (2005) 126 Cal.App.4th 164, 179-180.) Defendant here could not reasonably expect her uncharged conduct would not be considered since a trial court awarding victim restitution as a condition of probation may consider all of defendant's uncharged conduct so long as it is reasonably related to the crime of which he or she is convicted or to the goal of deterring future misconduct. (Ibid.; see Snow, supra, 205 Cal.App.4th at p. 940; People v. Baumann (1985) 176 Cal.App.3d 67, 76-77 (Baumann).)
Just as in Snow, requiring defendant to pay restitution for payments made to the Housing Authority prior to July 2015 serves the goal of deterring any future misrepresentation, fraud and perjury conduct by defendant against the victim or anyone else. Defendant does not address the rehabilitative and deterrent purposes of the court's victim restitution order. However, these purposes should be considered in determining whether the trial court employed a rational method for calculating the amount of restitution owed to the Housing Authority, and whether it abused its broad discretion in determining the amount of restitution. (See Giordano, supra, 42 Cal.4th at pp. 663-664.) "Restitution 'is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his [or her] actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.' " (People v. Moser (1996) 50 Cal.App.4th 130, 135-136, italics added; see People v. Hove (1999) 76 Cal.App.4th 1266, 1273 (Hove).)
Furthermore, contrary to defendant's argument, the award of restitution for conduct prior to July 2015 is transactionally related to the July 2015 conduct. The police report indicates the Housing Authority learned defendant never disclosed Willis or Scott as ever residing in her home on April 14, 2015 and June 15, 2015. The police report also noted that a deputy contacted Scott in one of the bedrooms at defendant's residence on March 24, 2014. Accordingly, the trial court could reasonably infer defendant failed to disclose the requested information to the Housing Authority in the disclosure questionnaires under penalty of perjury for the period prior to July 2015. The trial court's use of the period prior to July 2015 serves the rehabilitative and deterrent purposes of victim restitution by forcing defendant to confront, in concrete terms, the harm her actions have caused.
We reject defendant's assertion that the plea agreement prevented the trial court from using the police report as a factual basis for its restitution award. First, the plea agreement did not bar the police report as a factual basis for the trial court's probationary restitution award because the plea agreement did not say anything about excluding it for restitution purposes or any other purpose. Second, trial courts determining restitution awards imposed as a condition of probation may consider extrajudicial reports even though they include extrajudicial statements and conclusions. (See Hove, supra, 76 Cal.App.4th at pp. 1274-1275 [this court upholding the trial court's consideration of probation officer's memorandum and Medi-Cal report]; People v. Foster (1993) 14 Cal.App.4th 939, 947 [a hearing to establish the amount of restitution does not require the formalities of other phases of criminal prosecution], superseded by statute on another point as recognized in People v. Birkett (1999) 21 Cal.4th 226, 238-242 & People v. Sexton (1995) 33 Cal.App.4th 64, 67-71; Baumann, supra, 176 Cal.App.3d at p. 81 [upholding the trial court's consideration of the probation officer's report when determining restitution even though it includes hearsay and conclusions.)
Based on the foregoing, we find the restitution order did not violate the terms of defendant's plea agreement.
C. Calculation of Restitution
Defendant also contends the trial court abused its discretion when it calculated restitution based on an improper legal theory that has no basis under current law. Specifically, relying on Crow, supra, 6 Cal.4th 952, defendant asserts the proper method of calculating restitution in welfare fraud cases is determined by subtracting the amount the government would have paid had no acts of fraud occurred from the amount the government actually paid. Defendant argues the trial court based its restitution award on the following testimony from Rico after she was asked how she determined the $22,977 restitution figure: "Once it's been determined that there are any unauthorized individuals and the disclosure questionnaires are not submitted with any requests of changes, that family becomes ineligible from receiving any federal funds. So it's not an entitled program. It is required of all families to disclose true and accurate information. If you falsify any information, at that point from that point forward you are no longer eligible to receive the federal funds."
Defendant maintains Rico's testimony was "wrong" because United States Department of Housing and Urban Development (HUD) guidelines do not require that a public housing agency terminate assistance for failing to report additional residents and do require that a public housing agency give families an opportunity for a hearing before terminating assistance because of the family's action or failure to act. Defendant also asserts the HUD guidelines give a public housing agency the discretion to consider " 'the seriousness of the issue, the level of involvement of family members, mitigating circumstances related to the disability of a family member, and the effects of termination on non-family members.' "
In the alternative, defendant argues her trial counsel was constitutionally ineffective for failing to preserve the issue by contesting the trial court's method of calculation, by arguing defendant was not required to pay the full restitution amount, and by failing to mention or cite the HUD guidelines referenced for the first time on appeal. In order to forestall defendant's ineffective assistance of counsel claim, we will address defendant's claim on its merit.
A trial court's order setting the amount of restitution is reversible only if the appellant demonstrates a clear abuse of discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992 (Thygesen).) No abuse of discretion will be found when there is a factual or rational basis for the amount of restitution ordered. (People v. Dalvito (1997) 56 Cal.App.4th 557, 562; People v. Hudson (2003) 113 Cal.App.4th 924, 927 (Hudson).) The order need not reflect the exact amount of the loss, nor must the order reflect the amount of damages recoverable in a civil action. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382 (Akins); People v. Bernal (2002) 101 Cal.App.4th 155, 162.) "In determining the amount of restitution, all that is required is that the trial court 'use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' [Citations.]" (Akins, at p. 1382.)
In Crow, supra, 6 Cal.4th 952, the defendant aided and abetted the mother of his children in the fraudulent taking of welfare benefits from the Lake County Department of Social Services. A sentencing enhancement was imposed under a former version of section 12022.6, subdivision (a), which set the threshold of loss at $25,000. (Crow, at p. 955.) The government agency paid nearly $33,000 in welfare benefits during the time period at issue. (Id. at p. 961.)
On appeal, the defendant argued the agency's loss was not the full amount of benefits it had paid, but rather the amount in excess of what the recipient was rightfully entitled to receive based upon her welfare eligibility. (Crow, supra, 6 Cal.4th at p. 955.) The Supreme Court agreed with this argument, concluding: "Defendant is right that in determining whether to impose the one-year sentence enhancement of Penal Code section 12022.6, subdivision (a), the defrauded agency's 'loss' should be calculated by subtracting the amount the government would have paid had no acts of fraud occurred from the amount the government actually paid. Any money that the government would have been obligated to pay had the fraud not occurred is not attributable to the fraud, and thus is not a 'loss' arising out of the criminal offense." (Id. at pp. 961-962; accord, Hudson, supra, 113 Cal.App.4th at p. 928-929; Akins, supra, 128 Cal.App.4th at p. 1383; People v. Fortune (2005) 129 Cal.App.4th 790, 794-797 (Fortune).)
Defendant also relies on Hudson and Akins to support her position in her reply brief. In Hudson, supra, 113 Cal.App.4th 924, an employee of the department explained that state regulations normally entitle welfare recipients to have 20 percent of their earned income disregarded in determining their food stamp entitlement; however, recipients found to have underreported their income are not entitled to this 20 percent disregard of their earned income. (Id. at pp. 926-927.) Following these regulations, the department did not give the defendant the benefit of the 20 percent disregard when it calculated the restitution she owed for over issued food stamps. (Id. at p. 927.) The Court of Appeal concluded the department's method of calculating food stamp restitution "violated Crow's clear directive" that the agency's loss be computed based on the amount it would have paid had no acts of fraud occurred. (Id. at pp. 928-929.) Akins and Fortune, based on Crow, have also held that restitution amounts should be based on the difference between what was paid as a result of the fraud and what the government would have paid "had the fraud not occurred." (Crow, supra, 6 Cal.4th at p. 962; accord Pen. Code, § 1202.4, subd. (f); Akins, supra, 128 Cal.App.4th at pp. 1386-1389; Fortune, supra, 129 Cal.App.4th at pp. 794-797.)
We find Crow, Akins, Hudson, and Fortune distinguishable from the present matter. In Crow, Akins, Hudson, and Fortune, the issue concerned situations in which the defendant would have been entitled to retain some of the government payments regardless of the fraud. (Crow, supra, at 6 Cal.4th p. 955; Hudson, supra, 113 Cal.App.4th at pp. 928-930; Akins, supra, 128 Cal.App.4th at pp. 1382-1385; Fortune, supra, 129 Cal.App.4th at pp. 794-797.) Here, at the time of the restitution hearing, it was undisputed defendant would not have been entitled to receive any of the benefits due to her fraud. Where the trial court determines the economic loss the Housing Authority incurred by defendant's perjury by false application for aid, the Housing Authority's loss encompasses the full amount of HAP defendant received from the Housing Authority while ineligible for any HAP because defendant was not entitled to any HAP once she rendered herself ineligible to receive it. Therefore, no additional calculation is warranted beyond the months of HAP defendant received from the Housing Authority while ineligible to receive any HAP, plus the costs incurred by the Housing Authority to investigate the case. At the time of the restitution hearing, defendant did not provide any evidence to show the Housing Authority would have approved any HAP payments to defendant but for her fraud. Additionally, defendant never challenged Rico's testimony describing ineligibility for HAP or the trial court's reliance on that testimony when calculating the restitution award. Furthermore, defendant never suggested there were any HUD guidelines that precluded the trial court's method of calculation.
In the case, the trial court rationally sought to make the Housing Authority whole for the months of HAP it provided defendant when defendant was ineligible for any HAP. Although the Housing Authority requested $23,427 in restitution ($450 in investigative costs, plus the $22,977 of HAP received by defendant from October 1, 2013 to October 1, 2015), the trial court prevented what it saw as a potential windfall to the Housing Authority by deducting $6,234 in order to make the Housing Authority whole for the economic loss it actually suffered, to wit: $17,193, comprised of $450 in investigative costs plus $16,743 for the months of HAP it incorrectly provided defendant while she was ineligible for any HAP. It did so by deducting from the restitution award the HAP received by defendant for the months of October 1, 2013 to March 30, 2014 (the months for which it declined to find defendant ineligible for HAP she received based upon the evidence it considered at the restitution hearing).
Defendant believes because the HUD guidelines provide the Housing Authority with discretion whether to terminate HAP benefits, Rico was wrong about a mandatory loss of eligibility and, therefore, the trial court erred in relying on Rico's testimony in awarding full restitution to the Housing Authority on a legally erroneous premise. However, this did not justify denying the Housing Authority its mandatory, broadly and liberally construed, full restitution. Moreover, as noted in Akins and Hudson, a department's regulatory guidelines for determining and collecting overpayments do not constrain a criminal court's discretion in determining the amount of restitution. (See Hudson, supra, 113 Cal.App.4th at p. 929.) As the Akins court explained, "state and federal regulations that require the Department to calculate the amount of overpayment according to a different method in [no] way circumscribe the discretion of the court to calculate the amount of restitution under section 1202.4. [Citations.]" (Akins, supra, 128 Cal.App.4th at p. 1387.) Restitution ordered as part of a criminal conviction is not part of this regulatory scheme, and the trial court remains free to use any rational method to set a restitution amount that can reasonably be said to make the victim whole. (Ibid.; see Thygesen, supra, 69 Cal.App.4th at p. 992.)
For these reasons, we conclude the trial court did not abuse its discretion in calculating the amount of restitution defendant owed to the Housing Authority. (Hudson, supra, 113 Cal.App.4th at p. 927.)
D. Typographical Error in Police Report
Defendant further claims that the trial court abused its discretion when it awarded restitution for rental payments made prior to April 2015 because there is a clear factual error in the police report concerning the year the deputy spoke to Scott at defendant's residence. In support, defendant relies on the following passage from the police report: "Deputy Browsowske contacted [Jamal] Scott in one of the bedrooms at [defendant's] residence on 3/24/14. Scott admitted he lived at the residence during his interview. (Reference DR#171503421)." Defendant believes the specified date was a typographical error because the rest of the pertinent page of the police report shows deputies arrested three people from defendant's residence on "3/24/15," and therefore Deputy Browsowske must have contacted Scott on March 24, 2015, rather than March 24, 2014. In the alternative, defendant contends she received ineffective assistance of counsel if her trial counsel failed to preserve the issue on appeal for failing to bring the error to the trial court's attention at the restitution hearing.
In order to forestall defendant's ineffective assistance of counsel claim, we will reach defendant's claim on the merits.
The People reply defendant has failed to affirmatively show the trial court's restitution award relied on a typographical error. In support, the People cite the following colloquy that occurred between the prosecutor and the court:
"THE COURT: Mr. Buckingham [the prosecutor], can you explain to the Court how—why the start date of the reimbursement or the restitution is October 5th, 2013?
"[THE PROSECUTOR]: Because October is the month in which the first reference—and that's the CPS contact on page 5 of discovery—lists that Mr. Willis provided 13896 Bluegrass Place as his residence. So that provides the October date.
"Additionally, not that it's necessarily—just to give the Court some information on some other dates: On March 24th, 2015, was when Mr. Willis was arrested, it appears, from the location of 13896 Bluegrass Place, and on March 24th, 2014, was when Jamal Scott indicated that he lived at the residence during an interview with law enforcement.
"So the October 13th date comes from the indication on page 5 [of the police report] where CPS was provide—or DCFS, I should say, was provided that address by Mr. Willis, and then again on March 14th Jamal Scott was indicated living there, and then on March 24, 2015
"THE COURT: Do I have something on March 14th, 2015, that said he lived there?
"[THE PROSECUTOR]: That's on page 4 of the report. It is in the fourth paragraph under the heading 'information investigation,' and that's from Mr. Jamal Scott.
"THE COURT: And he was contacted.
"[THE PROSECUTOR]: And he was contacted by one of the deputies. Mr. Scott was contacted by one of the deputies in the bedroom at that residence.
"THE COURT: A deputy contacted him at the residence on March 14, 2014.
"[THE PROSECUTOR]: 2014.
"THE COURT: Okay. So certainly, that's established as of March of 2014. Now my question is going to be: For the five months before there's a request for reimbursement, the only thing we have is that Mr. Willis gave that address to CPS?
"[THE PROSECUTOR]: I believe that's a fair characterization of the distinction between October and March, 2014.
"THE COURT: But no one established that he was actually living there, just that he gave that as an address.
"[THE PROSECUTOR]: Correct.
"THE COURT: And has it been established somehow that she gave him permission to do that? Without that, I'm not sure how
"[THE PROSECUTOR]: For the Court's information and not that—my initial offer to [defense counsel] was to settle the restitution hearing for beginning of the March 2014 date. So I do think there's some vagueness between the October and March date.
"THE COURT: Court's going to order restitution. I'm going to subtract the amount for the five months previous. So do you have that number?
"[THE PROSECUTOR]: I calculated that number previously as, I believe, $17,193—although, I have to confess I don't recall if that included the $450 or not—and that includes the April month but not the October through March months.
"[DEFENSE COUNSEL]: And, your Honor, if I could just independently verify as well. What specific months is the Court asking?
"THE COURT: I'm saying I'm going to order restitution from April 1st, 2014, forward, and the investigative costs.
"[THE PROSECUTOR]: So what I calculated was 881 times three. That equalled 2,643. 1,197 times three, that equalled 3,591. When I added those two numbers together, I got $6,234.
"THE COURT: We're going to subtract that from $23,427.
"[THE PROSECUTOR]: I believe that was 17,193.
"THE COURT: All right. Court's going to order restitution in the amount of $17,193 to the Housing Authority of the County of San Bernardino
It is well settled that " '[t]he burden is on the party seeking restitution to provide an adequate factual basis for the claim.' " (People v. Jessee (2013) 222 Cal.App.4th 501, 506, quoting Giordano, supra, 42 Cal.4th at p. 664.) Once the prosecution has made a prima facie showing of the victim's loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. (Jessee, at p. 507.) "In reviewing the sufficiency of the evidence [to support a restitution award], 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.' [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] '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. [Citation.] We 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. [Citations.]" (People v. Baker (2005) 126 Cal.App.4th 463, 468-469; accord, Jessee, at pp. 506-507.)
In the present matter, after a thorough review of the record, we find that it is unclear whether Deputy Browsowske interviewed Scott on March 24, 2014, or March 24, 2015. The context of the police report clearly indicates that the date of the arrest was on March 24, 2015. The police report states that "[d]eputies" arrested three people on March 24, 2015. The police report then states: "[Defendant] disclosed her arrest in March but failed to mention the arrest of Nikiea Willis (of whom she's never disclosed as living at the residence) who was residing in the home at the time of his arrest. [Defendant] also failed to disclose her friend, Jamaal [sic] Davion Scott, was residing in the home. Deputy Browsowske contacted Scott in one of the bedrooms at the residence on 3/24/14." Given the narrative of the report, the fact that deputies arrived on March 24, 2015, and the lack of any other dates or information that otherwise describes why Deputy Browsowske might have been at defendant's residence exactly one year to the day before the arrest that triggered these events in question, it appears from the record that there may be a typographical error in the police report concerning the date Deputy Browsowske contacted Scott. The People's reliance on the colloquy between the trial court and the prosecutor at the restitution hearing is unavailing.
"Evidence is substantial if it is reasonable, credible, and of solid value." (People v. Marshall (1997) 15 Cal.4th 1, 31.) Because there is a doubt in this record as to the date Deputy Browsowske interviewed Scott when he was found to be residing in defendant's home and this date was clearly relied upon by the trial court in awarding restitution to the Housing Authority, we believe a remand is necessary to clarify the inconsistency. We are not in a position to determine precisely whether Deputy Browsowske contacted Scott on March 24, 2014 or March 24, 2015.
Accordingly, we remand this matter for the limited purpose of allowing the trial court to determine the exact period individuals were contacted or found to be residing in defendant's home and make any necessary corrections to the restitution order based on the clarification by the parties.
IV
DISPOSITION
The matter is remanded for the limited purpose of allowing the trial court to determine the exact period of victim restitution and make any necessary corrections to the amount of the restitution order based on clarification by the parties. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.