Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 6261427
SCOTLAND, P. J.
Defendant Ernie Lee Marier, Jr., was convicted of a felony, diverting construction funds (Pen. Code, § 484b), and four misdemeanors, contracting without a license (Bus. & Prof. Code, § 7028, subd. (a)); further section references are to the Business and Professions Code unless otherwise specified), fraudulently using a contractor’s license number (§ 7027.3), unlawfully entering into a home improvement contract (§ 7159.5, subd. (a)(3)), and requesting or accepting excess payment (§ 7159.5, subd. (a)(5)). He was placed on probation with various conditions, including that he serve 270 days in the county jail and pay victim restitution in the amount of $375,491.
On appeal, defendant raises several claims of instructional error, contends his convictions for violating section 7159.5 must be reversed because he committed the offenses before the statute’s operative date, and argues the court erred in initially ordering restitution in the amount of $501,139, a sum that was subsequently reduced to $375,491 following a restitution hearing. We shall reverse the convictions for violating section 7159.5 and otherwise affirm the judgment.
FACTUAL BACKGROUND
Defendant was the majority owner of Mel Trust Development, Inc., a development company incorporated in 2003. David King, a licensed general contractor, owned a 10-percent interest in Mel Trust Development and also owned his own construction company, David King Construction. King possessed a general contractor’s license from August 14, 2000, to April 14, 2005. On April 14, 2005, Mel Trust Development was issued a general contractor’s license with King listed as the responsible managing officer, i.e., an officer of the corporation who qualified for the contractor’s license. King disassociated himself from Mel Trust Development on October 3, 2005, resulting in the license being suspended on January 1, 2006.
Bear Creek Construction, a family business founded by defendant’s father, Ernie Marier, Sr., possessed a license to engage in general paving and earthwork, including clearing debris from a worksite, building roads and parking lots, and constructing sanitation systems. It did not possess a general contractor’s license. Defendant disassociated himself from Bear Creek Construction’s license in 1988.
The Armanini Project
Lori Armanini owned rental property in the Lake Tahoe area that had been damaged by fire. Wanting to remove the fire-damaged structure and build a new house in its place, Armanini consulted with her designer, Larry White, and engineer, Douglas Ketron, seeking a referral to a contractor who would be able to execute the plans. Armanini was referred to defendant. Ketron believed that defendant was a licensed general contractor because defendant previously consulted with Ketron on an unrelated project and gave Ketron a Bear Creek Construction business card with the name “Ernie Marier” and a California contractor’s license number printed on the card. Defendant also told Ketron that he had “done a lot of work” in the Tahoe area and “knew the local customs and local people,” which Ketron understood to mean that defendant had built houses in the Tahoe area and knew the local suppliers and building department officials.
The name on the card actually referred to defendant’s father, Ernie Marier, Sr., and the license number referred to Bear Creek Construction’s paving and earthwork license.
On September 24, 2003, Armanini and defendant signed a contract for removal of the fire-damaged structure. The contract was drafted by defendant and listed the names of three construction companies, Mel Trust Development, Bear Creek Construction, and David King Construction. While Armanini understood Bear Creek Construction to be the company in charge of the demolition, defendant explained in his testimony that the contract was a “Mel Trust Development contract,” and that he drafted and signed the contract and collected payments made out to Mel Trust Development. Neither defendant, nor Mel Trust Development, was associated with a valid contractor’s license at the time of the contract or demolition. The demolition was performed to Armanini’s satisfaction and received the approval of Placer County and the Tahoe Regional Planning Agency.
On April 28, 2004, Armanini and defendant signed a contract for the construction of a “weather-tight structure” with flooring and appliances for $257,500. This contract was also drafted by defendant. Like the demolition contract, this contract listed Mel Trust Development, Bear Creek Construction, and David King Construction. Armanini understood that Bear Creek Construction would be in charge of building the structure because defendant told her that he was a “high ranking officer of Bear Creek Construction” and provided a Bear Creek Construction business card. Defendant did not inform Armanini that he had not been associated with Bear Creek Construction’s license since 1988 or that Bear Creek Construction was not licensed to build homes.
In reality, Bear Creek Construction had nothing to do with the building of the new structure. According to the president of Bear Creek Construction (defendant’s mother), the company’s role in the Armanini project was limited to the demolition phase, in accordance with the scope of the company’s paving and earthwork license. The construction phase of the project was undertaken by defendant’s company, Mel Trust Development, with King acting as “the foreman on the job” providing the “on-site supervision.” As defendant explained in his testimony at trial, the contract was a “Mel Trust Development contract” and King was paid “as an employee and also as a partner in the corporation.” Indeed, during construction, defendant identified himself to an employee of the Placer County Building Department, Daren Scott, as the “contractor” on the project, and he also provided Scott with the same Bear Creek Construction business card that he had given to Ketron. Based on this interaction, Scott listed defendant as the contractor on the Armanini building permit. Defendant also told Jimmie Mullins, an enforcement representative with the Contractor’s State License Board, that defendant was the person who built the Armanini structure.
Armanini paid defendant $224,000 under the contract; defendant did not complete the project.
The Giovannini Project
In the summer of 2005, John Giovannini, a sergeant of the Placer County Sheriff’s Department, approached defendant seeking a contractor to demolish his garage and build a new two-level garage with an elevated deck. Defendant told Giovannini that he was the president of Mel Trust Development and that King was his foreman. Giovannini showed defendant his property and the plans for the new garage and deck. Defendant submitted a bid two to three weeks later, along with a letter stating: “I believe that this is a workable plan.”
On August 26, 2005, Giovannini and defendant entered into a contract for roughly $150,000 that broke the project into four phases. The first phase called for demolishing the existing garage, removing asphalt, rebuilding the footings and posts on the deck, and placing gravel around the perimeter of the house for erosion control. The record does not contain a detailed description of the work to be performed in connection with the remaining three phases. The contract stated Giovannini would pay a $5,000 mobilization fee, $7,600 for dumpster and landfill charges, $800 for erosion control fencing, $9,600 for phase-two materials, $5,280 for concrete, $10,000 as a progress payment after the concrete was poured, $78,500 for phase three of the project, and the balance upon completion of the final phase. Giovannini was also required to supply housing for defendant and his crew during construction.
On August 29, 2005, defendant and his crew began the work after Giovannini made initial phase-one payments in the amount of $13,400. They worked on the project for about one month, during which Giovannini made a number of payments to defendant and became increasingly concerned that he was diverting the money away from the project and that the project would not be completed.
On September 2, 2005, Giovannini presented a $9,600 check to defendant to cover phase-two materials. When it bounced, Giovannini transferred $10,000 into defendant’s account. On September 8, 2005, Giovannini wrote defendant a check for $12,150 as the final phase-one payment. On September 21, 2005, despite the fact that phase one of the project had not been completed, Giovannini made a $2,500 payment for work on phase two that was required before the concrete could be poured. The same day, defendant demanded an additional $15,000 from Giovannini, explaining this was the amount required under the contract for concrete. When defendant showed Giovannini his copy of the contract, Giovannini compared it to the original and discovered a “1” had been added to the “$5,280” figure the contract originally required for concrete. Giovannini accused defendant of fraud and asked where the roughly $30,000 he had already paid had gone. Defendant then asked for $5,280. Giovannini refused, but did write him a check for $2,500 so defendant’s crew would be paid. Giovannini later received a notice from United Rentals informing him the company would be seeking to attach a mechanic’s lien in the amount of $5,511.46 on his property because defendant had not paid for a backhoe rented for the project.
On September 25, 2005, after paying $38,050 under the contract, Giovannini fired defendant and his crew.
A review of defendant’s bank statements revealed that between August 29, 2005, and September 26, 2005, the only deposits made to defendant’s Mel Trust Development account came from Giovannini. During this time period, defendant had another crew working on a custom home in Valley Springs for his father. Defendant used the money from the Giovannini job to pay the Valley Springs crew. After defendant was fired from the Giovannini job, the work that defendant’s crew was doing on the Valley Springs project also stopped because defendant no longer had money to pay the crew.
Defendant’s account of these construction projects was markedly different than that told by Armanini and Giovannini. Where relevant to the issues raised on appeal, defendant’s version of events will be set forth in the discussion that follows.
DISCUSSION
I
Defendant asserts the court erred by refusing to instruct the jury in accordance with section 7026.1, subdivision (c). Such an instruction, he says, would have pinpointed the defense theory that defendant was not required to possess a valid contractor’s license at the time of the Armanini project because he was merely providing temporary labor to Bear Creek Construction and to David King Construction. The contention fails.
A trial court has a duty to instruct sua sponte on “all general principles of law that are ‘“closely and openly connected to the facts and that are necessary for the jury’s understanding of the case.” [Citation.] In addition, “a defendant has a right to an instruction that pinpoints the theory of the defense....”’ [Citation.] The court may, however, ‘properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1021.)
Here, the trial court instructed the jury on the definition of “contractor” in accordance with section 7026, which states: “‘Contractor,’ for the purposes of this chapter, is synonymous with ‘builder’ and, within the meaning of this chapter, a contractor is any person who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or herself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, parking facility, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or other structures or works in connection therewith, or the cleaning of grounds or structures in connection therewith, or the preparation and removal of roadway construction zones, lane closures, flagging, or traffic diversions, or the installation, repair, maintenance, or calibration of monitoring equipment for underground storage tanks, and whether or not the performance of work herein described involves the addition to, or fabrication into, any structure, project, development or improvement herein described of any material or article of merchandise. ‘Contractor’ includes subcontractor and specialty contractor. ‘Roadway’ includes, but is not limited to, public or city streets, highways, or any public conveyance.”
The trial court declined defendant’s request to instruct the jury on section 7026.1, subdivision (c), which provides that the term “contractor” also includes “[a] temporary labor service agency that, as the employer, provides employees for the performance of work covered by this chapter,” but that “[t]he provisions of this subdivision shall not apply if there is a properly licensed contractor who exercises supervision in accordance with Section 7068.1 and who is directly responsible for the final results of the work.” (§ 7026.1, subd. (c).) The judge explained: “The Court feels that in the present instructions, the term ‘contractor’ is defined. The definition was pulled straight out of the Business and Profession[s] Code verbatim. And I think it does accurately define the term ‘contractor.’”
Section 7026.1, subdivision (c) states in pertinent part: “The term ‘contractor’ includes all of the following: [¶]... [¶] (c) A temporary labor service agency that, as the employer, provides employees for the performance of work covered by this chapter. The provisions of this subdivision shall not apply if there is a properly licensed contractor who exercises supervision in accordance with Section 7068.1 and who is directly responsible for the final results of the work. Nothing in this subdivision shall require a qualifying individual, as provided in Section 7068, to be present during the supervision of work covered by this chapter. A contractor requesting the services of a temporary labor service agency shall provide his or her license number to that temporary labor service agency.”
We reject defendant’s contention that the doctrine of ejusdem generis mandated instruction on section 7026.1, subdivision (c). This “principle of statutory construction explains that, when a particular class of things modifies general words, those general words are construed as applying only to things of the same nature or class as those enumerated.” (People v. Arias (2008) 45 Cal.4th 169, 180 (hereafter Arias).) “The rule is ‘based on the obvious reason that if the Legislature had intended the general words to be used in their unrestricted sense, it would not have mentioned the particular things or classes of things which would in that event become mere surplusage.’ [Citation.]” (Ibid.) For example, where the general definition of “false compartment” in Health and Safety Code section 11366.8 is modified by a non-exclusive list of examples, one of which includes “‘[o]riginal factory equipment of a vehicle that is modified, altered, or changed,’” the definition necessarily excludes a vehicle’s original factory equipment that had not been modified, altered, or changed. (Id. at pp. 175, 180.)
Defendant notes that the general definition of “contractor” in section 7026 is modified by a non-exclusive list of examples found in section 7026.1, one of which includes “[a] temporary labor service agency that, as the employer, provides employees for the performance of work covered by this chapter,” but excludes such an agency “if there is a properly licensed contractor who exercises supervision in accordance with Section 7068.1 and who is directly responsible for the final results of the work.” (§ 7026.1, subd. (c).)
We agree with defendant that the general definition of “contractor” provided by section 7026 must be read in light of section 7026.1, subdivision (c), and that a person or entity who simply provides laborers to a licensed contractor, and who does not “actually perform or supervise any construction services or contract, bid, or promise to do so,” does not act in the capacity of a contractor and is not required to have a license. (Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152, 166.)
However, there is no substantial evidence from which the jury could have concluded that defendant merely provided temporary labor to Bear Creek Construction and David King Construction.
Defendant, himself, testified that he drafted and signed both Armanini contracts and that each was a “Mel Trust Development contract.” While defendant also described the demolition project as a “Bear Creek project,” the record reveals he did far more than simply provide laborers to Bear Creek Construction. He drafted and signed the contract, and he accepted payment under the contract in the name of Mel Trust Development. Defendant also testified that King was the contractor in charge of the construction project; but the record reveals defendant did far more than simply provide laborers to David King Construction. Again, he drafted and signed the contract, accepted payment under the contract in the name of Mel Trust Development, and paid King as his employee.
A trial court is not required to give a pinpoint instruction if it is not supported by substantial evidence. (People v. Hovarter, supra, 44 Cal.4th at p. 1021.) Such was the case here.
II
We also reject defendant’s claim that he was prejudiced by a legally accurate instruction defining the crime of fraudulent use of a contractor’s license number.
Having not objected to the instruction at trial, defendant can prevail only if he demonstrates the instruction resulted in a miscarriage of justice in that it is reasonably probable a result more favorable to him would have been reached in the absence of the claimed error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Anderson (2007) 152 Cal.App.4th 919, 927.)
We find no conceivable error, much less a miscarriage of justice.
Section 7027.3 states in pertinent part: “Any person, licensed or unlicensed, who willfully and intentionally uses, with intent to defraud, a contractor’s license number that does not correspond to the number on a currently valid contractor’s license held by that person, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in state prison, or in county jail for not more than one year, or by both that fine and imprisonment.”
In accordance with this statute, the trial court instructed the jury: “In order to find the defendant guilty of this crime, the People must prove that, one, the defendant willfully and intentionally used a contractor’s license number. Two, at the time of this use, the license number used did not correspond to the number on a currently valid contractor’s license held by the defendant. And three, at the time of such use, the defendant intended to defraud. [¶] Someone intends to defraud if he intends to deceive another person and cause a loss of money, goods or services. It is not necessary that anyone actually be defrauded or actually suffer a financial, legal, or property loss as a result of the [d]efendant’s acts. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intended to break the law, hurt someone else, or gain an advantage.”
Conceding the instruction was “not technically inaccurate,” defendant complains that it “tended to focus the jury’s attention on [his] purported intent at the time he made his representations,” and did not tell the jury that “evidence [he] restored or improved the property could be considered in determining whether [he] harbored the requisite intent to defraud.” The contention fails.
First, the instruction appropriately focused the jury’s attention on defendant’s intent at the time he used a contractor’s license number that did not correspond to the number on a currently valid contractor’s license held by defendant. This is precisely the time at which the law required him to possess the intent to defraud. (See, e.g., People v. Kenefick (2009) 170 Cal.App.4th 114, 123 [crime of forgery is complete when one falsely makes a document without authority or passes such a document with intent to defraud].)
Second, as defendant concedes, he did not request the instruction he now wishes had been given, namely, the jury could consider evidence he restored or improved Armanini’s property in determining whether he possessed the specific intent to defraud. His trial attorney undoubtedly did not request the instruction because defendant was not entitled to it.
Intent to defraud means “‘an intent to deceive another person or to induce that person to part with property or to alter that person’s position to [his or her] injury or risk, and to accomplish that purpose by some false statement, false representation of fact, wrongful concealment or suppression of truth, or by any other artifice or act designed to deceive.’” (People v. Booth (1996) 48 Cal.App.4th 1247, 1253, italics omitted; People v. Blick (2007) 153 Cal.App.4th 759, 772.)
Thus, where a person “knowingly passes a false check on another’s account, the general rule is that subsequent restitution or repayment is irrelevant to the question of the specific intent to defraud at the time of passing the forged check[; the person] has misrepresented the genuineness of the instrument for the purpose of obtaining cash or property.” (People v. Wing (1973) 32 Cal.App.3d 197, 200.) “[I]n the absence of evidence that the defendant had authority to affix either his name or some other person’s name to the instrument, or that he did not know the instrument was false at the time he passed it, the bare fact of restitution or repayment is irrelevant as having no tendency in reason to prove or disprove any fact that is of consequence in the action.” (Id. at p. 202; see also People v. Braver (1964) 229 Cal.App.2d 303, 306-307 [in prosecution for forgery of promissory note, evidence of subsequent payments relevant to show defendant’s belief that he had authority to enter into transaction and had no intent to defraud].)
So it is with the crime of fraudulent use of a contractor’s license number, which is complete at the moment a person willfully and intentionally uses a contractor’s license number that does not correspond to the number on a currently valid contractor’s license held by defendant, with the specific intent to induce another person to part with property or to alter that person’s position to his or her injury or risk. (§ 7027.3; see also People v. Booth, supra, 48 Cal.App.4th at p. 1253; People v. Blick, supra, 153 Cal.App.4th at p. 772.) Simply put, the crime was complete the moment defendant, for the purpose of inducing another person to enter into a construction contract, used a license number to which he was not associated.
Absent evidence that defendant believed he possessed the authority to use the contractor’s license number of another, the bare fact he later performed under the contract was irrelevant because it had no tendency in reason to prove or disprove any fact of consequence in the action. Here, defendant testified he knew that he was not associated with either Bear Creek Construction’s license number or David King Construction’s license number. Accordingly, whether he substantially performed under the Armanini contracts, after using these license numbers to induce Armanini into entering into the contracts, was irrelevant.
Thus, defendant’s challenge to the court’s definition of the crime of fraudulent use of a contractor’s license number lacks merit.
III
In his final challenge to the instructions, defendant argues that, although the court told the jury Penal Code section 484b, diversion of construction funds, requires a wrongful intent, and a person acts with a wrongful intent when he does a prohibited act “on purpose,” defendant was prejudiced because the trial court “neglected to include the word ‘wrongfully’ in setting forth the elements of the offense.”
Penal Code section 484b states: “Any person who receives money for the purpose of obtaining or paying for services, labor, materials or equipment and willfully fails to apply such money for such purpose by either willfully failing to complete the improvements for which funds were provided or willfully failing to pay for services, labor, materials or equipment provided incident to such construction, and wrongfully diverts the funds to a use other than that for which the funds were received, shall be guilty of a public offense....”
Because he did not object to the instruction at trial, defendant can prevail only if he demonstrates the instruction resulted in a miscarriage of justice. (People v. Anderson, supra, 152 Cal.App.4th at p. 927.)
“On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt.” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
Here, as defendant concedes, the court instructed the jury that, to find him guilty of any of the charged crimes, including diversion of construction funds, defendant “must not only commit the prohibited acts or fail to do the required acts, but must do so with a wrongful intent. [¶] A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose. However, it’s not required that he or she intends to break the law. The act required is explained in the instruction for that crime or allegation.”
The trial court then instructed the jury on the elements of the crime of diversion of construction funds: “In order to find the defendant guilty of this crime, the People must prove that, one, the defendant received money for the purpose of obtaining or paying for services, labor, materials or equipment. Two, the defendant diverted said monies for use other than for which the funds were received. Three, the diversion [caused] the defendant to either, A, willfully fail to complete the improvement for which the funds were provided, or, B, willfully fail to pay for services, labor, materials or equipment provided incident to such construction. And, four, the value of the amount diverted was in excess of $1,000.” The court went on to say: “Someone commits an act willfully when he or she does it willingly or on purpose.”
As the court had previously instructed on the prosecution’s burden to show that defendant acted with “wrongful intent,” the jury would have understood that the diversion of construction funds had to be wrongful in order for defendant to be convicted of the crime. The absence of the word “wrongfully” in the description of the elements of the crime did not lessen the prosecution’s burden of proving guilt beyond a reasonable doubt. (See People v. Najera (2006) 138 Cal.App.4th 212, 228 [we presume “the jury understood and considered all of the instructions as a whole, in whatever order they might have been”].)
We also reject defendant’s additional assertion that the court erred by instructing the jury: “It is not an unlawful diversion of funds for a contractor to recoup costs that were incurred for bona fide project costs, including his prior payments for expenses and his credits for project costs, items accomplished with his own resources. If the contractor is entitled to recoup costs, then he may use the recouping as he likes. Whether or not the defendant intended to pay the money back later is not a defense. Further, it is immaterial whether the defendant intended there be a failure either to complete the project or pay labor, materials, or equipment costs.” This is an accurate statement of the law. “[A] contractor may recoup his prior payments for expenses and his credits for project cost items accomplished with his own resources. So long as the recoupment is made in good faith, in the absence of a contract term prohibiting such a use, there is no reason to view such conduct as forbidden by [Penal Code] section 484b. The interest [this provision] seeks to protect is the economic security provided by a direct transmutation of construction funds into project assets. Where a progress payment is applied to bona fide project costs the owner and lender receive a value in project assets presumably of equivalent value to the construction funds that have been so used. [¶] Section 484b provides a penal sanction when robbing Peter to pay Paul results in harm to Peter, i.e., a failure to complete the project or a failure to pay valid bills for material, labor, services or equipment.” (People v. Butcher (1986) 185 Cal.App.3d 929, 938.) Thus, where there is a wrongful diversion of construction funds that causes such harm, criminal liability attaches, and it is immaterial that defendant did not intend to fail to complete the project or pay valid bills for material, labor, services or equipment, or that he intended to pay the person back later. (People v. Stark (1994) 26 Cal.App.4th 1179, 1183-1184.)
IV
We do agree with defendant that his convictions for violating section 7159.5 must be reversed because he committed the offenses before the statute’s operative date. Indeed, the People concede the error.
Section 7159.5 was added to the Business and Professions Code by Senate Bill No. 30, which was enacted as chapter 566 of the Statutes of 2004. (Stats. 2004, ch. 566, § 8.) Section 21 of Senate Bill No. 30 stated “[t]his act shall become operative on July 1, 2005.” (Stats. 2004, ch. 566, § 21.) However, Senate Bill No. 1113--enacted as chapter 48 of the Statutes of 2005 and filed with the Secretary of State on July 18, 2005--amended section 7159.5 of the Business and Professions Code and repealed the prior operative date “to take effect immediately.” (Stats. 2005, ch. 48, §§ 11, 31, 32.) The bill further specified that section 7159.5 “shall become operative on January 1, 2006.” (Stats. 2005, ch. 48, § 11.) Thus, the operative date of section 7159.5 was postponed until January 1, 2006, and section 7159.5 cannot be retroactively applied to defendant, who violated its provisions on August 26, 2005.
V
Lastly, defendant complains that the trial court initially ordered $501,139 in restitution to be paid to Armanini based on a letter submitted to the probation department and attached to the probation report. This, he argues, was insufficient to support the order.
However, when the court made the initial restitution order, it explained that defendant had a “right to contest that amount” and that “the burden would be on the District Attorney to provide the documentation.” A hearing was held, and the amount was reduced to $375,491 based on the evidence adduced during the hearing.
Thus, we need not address defendant’s challenge to the initial restitution order. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055 [“An appellate court will not review questions which are moot and only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way. [Citation.] An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. [Citations.]”].)
Nevertheless, because the court’s written “order granting probation and judgment for monetary penalties,” filed May 2, 2008, incorrectly reflects the initial restitution amount of $501,139, we will direct the trial court to amend the order to reflect the correct restitution amount of $375,491.
DISPOSITION
Defendant’s convictions for violation of Business and Professions Code section 7159.5 (counts two and three) are reversed, and the trial court is directed to amend the order granting probation to reflect the correct restitution amount of $375,491. In all other respects, the judgment is affirmed.
We concur: RAYE , J., CANTIL-SAKAUYE , J.