Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C 05-051647-6
Haerle, J.
I. INTRODUCTION
This case stems from remodeling work defendant Claude Rick Givens May III did for homeowners Suzanne Micha Sommer and Steven Sommer. Later charged with four counts for unlicensed contracting, May pled guilty to a misdemeanor count of contracting without a license (Bus. & Prof. Code, § 7028; count two), with other counts dismissed and any restitution—potentially as much as $123,000 as then sought by the Sommers—to be set after a hearing. The court suspended imposition of sentence, granted probation and set the restitution hearing.
This appeal by May challenges a January 31, 2007, order to pay the Sommers restitution and interest totaling $98,339 (Pen. Code, § 1202.4), in monthly payments of $4,000. May claims that the court abused its discretion by (1) creating a “windfall” by awarding losses plus a full refund, (2) declining to credit him with $10,000 for a construction bond payment the Sommers received, (3) awarding them $5,000 for “lost income,” and (4) ordering monthly payments without determining his ability to pay. We reverse and remand on point (1), otherwise affirm the award, and find issue (4) moot given the need for remand.
Unspecified section and subdivision references are to Penal Code section 1202.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Offense
The plea disposition obviated the need for trial, and so we resort to a probation report summary: “In the summer of 2004, [May] distributed fliers for May Construction Company in the mailboxes in a Lafayette neighborhood. Victim Sommer[] received a flier in her mailbox, as did her neighbors. She contacted [May] with the understanding that he was a licensed contractor. Prior to hiring [him], [she] verified the license number on line and the bonding number by phone. Further, she contacted the State Compensation Insurance Fund and verified the company’s insurance.”
“On August 30, 2004, [May] went to [the] Sommers’ home and demanded a down payment of $9,310, which is well above the ten percent down payment allowed by law. [May] started work in early September 2004. He represented himself as the sole owner of May Construction and a licensed general contractor with a valid California license.
“In early November, 2004, [May] told victim Sommer[] he needed $40,000 to continue work. He told [her] he did not need permits for the work he was doing. Not only did [May] and his workers do a poor job, they also caused damage to the victim’s home. Although [May] assured the victim the windows he was installing were covered with a lifetime warranty, she later learned he had removed the windows from another job site thus nullifying any warranty.
“On January 14, 2005, victim Sommer[] fired [May] for fraud, nonperformance, failure to obtain proper permits, shoddy and unsafe workmanship and damage to her home. . . .”
B. The Restitution Hearing
Claimed losses were evidenced by photographs and exhibits listing deficient work identified by licensed contractors Anthony J. Bowles (Bowles) and Fuller Construction Co. (Fuller), that the Sommers hired to assess and correct the problems.
There was also testimony from Suzanne Sommer and May, much of which need not be related. May was asked about identified defects, for example, and tended to say that they were (1) not defects, (2) not his doing, (3) done in a “good and workmanlike manner,” or (4) left in poor condition because Sommer changed her mind, directed him on to other tasks or, in the end, fired him. Sommer supported her exhibit evidence, and each witness was examined about biases against the other. These matters of conflict and credibility were resolved against May, the trial court “credit[ing] the testimony of Suzanne Sommer” and implicitly accepting the evidence of loss except as to one garden `19+88window. Our deferential standard of review (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045), makes a recitation of most such conflicts unnecessary.
May concedes as much and accepts without dispute about $37,000 worth of work that the court found to be defective. We set out later in this opinion (part III, B, post) the evidence of construction losses. We do set out here the testimony on the disputed element of lost income and the bond payment received by the Sommers.
Suzanne Sommer testified that she “received a $10,000 payment from Claude May, II’s bonding insurance,” a bond connected with the construction company’s license—“the license owned by the father.” May conceded that he was not himself licensed and presented no testimony or documentary evidence to dispute Sommer’s testimony on this point or to show how, or by whom, the bond was procured and maintained. The father solely owned the business and held the license, but May had been running the business since the father suffered a stroke.
Sommer explained her claim of $5,000 for lost “wages” as being time she felt she had to stay home to supervise the work. May had assured her early on that she could go about her life without being home. However, it turned out that May was “rarely” on the job, unless she called to complain about something, and when Sommer was not there, the workers (some of whom did not speak English) would do unauthorized work and make mistakes, causing damage to the home. In the circumstances, it was her “choice . . . to stay home and act as the foreman.” This kept her from her usual routine of assisting in her husband’s medical practice. In her trained capacity as a nurse practitioner, Suzanne Sommer saw patients on Monday morning and Wednesday afternoon. She also worked from 35 to 45 hours a week as office manager. She valued her time as nurse practitioner at $300 an hour; the office billed for her time and received payment for it. She valued her time as office manager at $25 to $30 an hour. She was not paid directly in “salary,” but she and her husband lived off the proceeds of the practice. Her losses reflected some time at home spent writing letters and communicating with May, but no time preparing to come to court.
May’s hearing brief urged: that his work was good, warranting no restitution; that the amounts put forward by the Sommers and recommended by the probation department in a restitution report (the report) were duplicative and “suspiciously round,” failing to make out a prima facie case; that restitution would work a “windfall” to the Sommers; that May should get a $10,000 offset against any losses because the Sommers had already received a bond payment in that amount; and that a claim of $5,000 for lost wages was unsupported. Testimony at the hearing focused on those issues, and the court—the Hon. John Kennedy—took the matter under submission after some brief further argument where defense counsel declined to provide any other arguments for the record.
The report recommended restitution of $123,000 comprised of: $49,300 as an “amount paid to the defendant”; $49,300 as an “amount to re-do all of the work”; $20,000 as an “amount to repair damage to house”; and $5,000 as “wage loss.”
C. The Restitution Order
Judge Kennedy’s written restitution order of January 31, 2007, states in pertinent part: “Having read the declarations, documents, and exhibits presented; observed and evaluated the credibility of witnesses; and considered the pleadings and arguments of the parties, the court makes the following findings of fact and order.
“The court credits the testimony of Suzanne Sommer and finds that the remodeling work performed by [May] and by others under his direction while he was contracting without a license was unprofessional, defective, deficient, and substandard. Much of the work failed to comply with applicable building codes.
“The court finds pursuant to [section] 1202.4 that [May] must pay the following amounts to the victims, Dr. and Ms. Sommer:
“1. The full amount the Sommers paid to[May]:
$49,300
“2. The amount paid to Anthony Bowles torepair and replace defective work:
[$]17, 639
“3. The amount paid to Fuller Constructionto repair and replace defective work:
[$]5,000
“4. The amount estimated by Fuller tocomplete the repairs and to replace defectivework (not including garden window):
[$]14,895
“5. Lost income[:]
[$]5,000
“Total:
$91,834
“The amount claimed for a garden window is not awarded because there was insufficient evidence presented to show that this window was defective, damaged, or otherwise lacking in value.
“Although Ms. Sommer is not paid a wage or salary directly by her husband, her work for her husband’s medical practice has value and her absence from the practice to deal with [May’s] conduct imposed a cost on the practice and, therefore, on the victims’ income. The court finds Ms. Sommer’s estimate of $5,000 to be a reasonable estimate of the value of the income she and her husband lost as a result of [May’s] crime.
“The $10,000 paid to [the Sommers] by [May’s] [f]ather’s bonding company is not credited toward the amount [May] must pay in restitution. [§ 1202.4, subds. (a)(1) & (f)(2); People v. Birkett (1999) 21 Cal.4th 226, 234; People v. Hamilton (2003) 114 Cal.App.4th 932, 941-942.] The evidence shows that the $10,000 payment was made by [May’s] [f]ather’s bonding company in connection with the [f]ather’s license as a contractor, not in connection with [May] who, of course, was unlicensed. [Compare People v. Hamilton, supra, 114 Cal.App.4th at pp. 941-942, with People v. Jennings (2005) 128 Cal.App.4th 42, 53-57.]
“it is hereby ordered that [May] shall pay $91,834 restitution, plus interest at 10% per annum accruing from the date of sentencing, directly to Dr. and Ms. Sommer as a condition of his probation. The amount of interest that has accrued from the date of sentencing, May 16, 2006, through the date of this Order, is $6,505. Therefore, [May] is ordered to pay a total of $98,339 to Dr. and Ms. Sommer as of the date of this Order. [May] shall pay $4,000 per month beginning February 15, 2007, and continue paying $4,000 by the 15th of each month until paid in full. A failure to pay restitution in full is a violation of the terms and conditions of [May’s] probation and may lead to revocation of probation and imposition of jail time.”
D. Post-Order Events
Our record contains, and May recites, a flood of events postdating the order. Our review of the correctness of any order, however, is confined to matters that were before the court when it ruled, later matters being irrelevant. (In re Zeth S. (2003) 31 Cal.4th 396, 405; People v. Keligian (1960) 182 Cal.App.2d 771, 774-775.) May concedes that “[t]hese post restitution events [are] not directly relevant to the propriety of the trial court’s January 31, 2007 restitution order” but offers them to show “its prejudicial consequences.” We will have no occasion to assess prejudice from error but shall, however, mention some such events in a discussion of forfeiture (part III, E, post).
III. DISCUSSION
A. General Principles and Review Standards
Restitution is constitutionally and statutorily mandated in California, and the constitutional mandate is carried out through section 1202.4. (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.) “Section 1202.4, subdivision (f) provides for a direct restitution order ‘in every case in which a victim has suffered economic loss as a result of the defendant’s conduct.’ The order is to be for an amount ‘sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.’ (Id., subd. (f)(3).)” (People v. Brasure (2008) 42 Cal.4th 1037, 1074-1075.)
“ ‘The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.’ Restitution under this provision ‘shall be of a dollar amount that is sufficient to fully reimburse the victim . . ., including, but not limited to’ a list of enumerated items, including medical care, losses to property, and even security measures. (§ 1202.4, subd. (f)(3).)
“ ‘ “The standard of review of a restitution order is abuse of discretion. ‘A victim’s restitution right is to be broadly and liberally construed.’ [Citation.] ‘ “When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.” ‘ [Citations.]” [Citation.]’ [Citation.] ‘In reviewing the sufficiency of the evidence, “ ‘[t]he 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.]’ [Citation.] The trial court ‘ “must 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.” ’ [Citation.]” (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.)
“ ‘[T]he trial court is entitled to consider the probation report when determining the amount of restitution.’ [Citation.] For example, statements by the victims of the crimes about the value of the property stolen constitute ‘prima facie evidence of value for purposes of restitution.’ [Citations.] ‘This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.’ [Citation.] Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. [Citation.]” (People v. Keichler, supra, 129 Cal.App.4th at p. 1048.)
B. “Windfall” recovery
May challenges the award of amounts paid by the Sommers ($49,300)—on top of amounts paid for remedial work done by Bowles ($17,639) and Fuller ($5,000), and for estimated further work ($14,895)—to be a prohibited “windfall” recovery that violated the make-whole policy of section 1202.4. He accepts that the total $37,534 for past and future “corrective” work, given our deferential standard of review, “is his nickel.” He disputes, however, the added refund of $49,300 as a “windfall” that must be stricken from the award. Anticipating reliance by the People on Business and Professions Code, section 7031, which provides for a civil remedy of full refund regardless of economic loss, May argues that its policy conflicts with the make-whole policy of Penal Code section 1202.4. He also relies on subdivision (f)(3), which provides that restitution should “fully reimburse the victim or victims for every determined economic loss . . ., including but not limited to . . .: [¶] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.” (Italics added.) The stressed language being either/or, May reasons, means that a court cannot order both and that there is a preference for repair over replacement, whenever possible and less costly.
Neither side offers mathematical breakdowns of the three amounts, but exhibits from Bowles and Fuller appear to show the following.
Subdivision (b) of Business and Professions Code section 7031 states: “Except as provided in subdivision (e) [pertaining to good faith, substantial compliance], a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.”
The People see no statutory preference for repair and urge that the court acted within its discretion by awarding both a full refund and the past and future expenses of correction. They defend the total figure as, in essence, only “the cost of replacement,” repair being infeasible and losses not being limited to the identified past and future work comprising the $37,534. Alternatively, they urge that the court could have deemed a refund to be reasonably calculated to make the victims whole or to serve valid other remedial purposes, particularly deterrence, consistent with the remedy of the civil statute (fn. 3, ante). May concedes none of this reasoning.
We find some merit to some arguments on both sides but, in the end, insufficient support for a refund of the entire $49,300 paid to May by the Sommers. This requires a reversal and remand for a modification.
We take first the phrasing of subdivision (f)(3)(A), that “[t]he value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.” We reject May’s view of replacement or repair as a rigid either/or formula. Such rigidity may work in the typical case of damage to a vehicle or other property unaffixed to a home. For instance, one might repair a car or, if repairs are infeasible or more costly, replace it. The distinction is necessarily less rigid, however, when the damaged property is, as here, a remodeled home. One usually would not replace an entire room addition, for example, for partial defects, and if defects were integrated into a preexisting structure or otherwise satisfactory addition, one could be unable to repair defects without incidentally “replacing” what is already there.
Here, for example, May replaced a patio door in one bedroom with a bay window, rendering the room unusable as a bedroom because the change eliminated required egress for firefighters. The remedy was that Fuller installed an exterior door, purely a “repair” that left May’s work intact. On the other hand, a remedy for defectively soldered water pipe joints was to tear out May’s work and install correctly welded piping, clearly a replacement and repair. We cannot accept the premise that the Legislature meant, in the latter situation, that the remedy can only be one or the other, or that there is a “preference” for one over the other. Both are needed, and the amounts awarded by the court for what the Sommers paid Bowles and Fuller to “repair and replace defective work” reflects that reality, as does the award for the Fuller estimate of amounts still needed “to complete the repairs and to replace defective work . . . .”
On the other hand, we cannot accept the People’s justification of the combined $49,300 and $37,534 as based “solely” on the “the cost of replacing [May’s] defective work.” There is simply too little support for implying findings that cut very far into the extra $49,300. Suzanne Sommer testified to a “rough” estimate of “probably $4,000” in out-of-pocket expenses not included in the Fuller estimate of future work. These were for purchases of paint, tile, molding and windows. Then, on a photograph attached to the report, Sommer identified “over $7,000” as the cost to replace “LBL windows” that “had been removed by May from another house and then installed at my home,” leaving her with a void warranty.
It is not clear whether the court factored that $11,000 into the $49,300 it awarded as “[t]he full amount the Sommers paid to [May],” but even if we infer that this is what happened, it still leaves over $38,000 of unsupported economic loss. The People urge that May’s defective work left the victims “in a worse position” than before they contracted with May,” and that a total refund was therefore within the court’s discretion because “there was essentially nothing that could simply be ‘salvaged,’ ‘finished,’ or repaired.’ ” We are not convinced. The People point to the water pipe damage, lack of fire egress, and Sommers’ testimony at one point that Bowles, as a licensed contractor, “would not take responsibility for the work done by an unlicensed contractor. [¶] So everything Mr. May did with one—with three exceptions had to be removed.” This is not enough. The water damage and fire egress were remedied or accounted for as further work needing to be done, and the record does not allow us to conclude that a licensed contractor’s unwillingness to “take responsibility” for another’s work necessary renders that work valueless. There was no such testimony. We do not question that a contractor’s guarantee has value, but the People seem to say that there is simply no value in any work unless someone is willing to stand behind it. This is a sweeping proposition. If, as the record suggests, no licensed contractor is ever willing to stand behind unlicensed work, it could mean that no such work ever has value and that the only option is to start over, regardless of how well the unlicensed work was done or how minimal the flaws were.
We conclude that the restitution statute requires more than that approach. It requires demonstrated—not assumed—economic loss so that the award is reasonably calculated to remedy the loss. “[T]he amount of restitution ordered is intended ‘to make [the] victim whole, not to give a windfall.’ [Citation.]” (People v. Fortune (2005) 129 Cal.App.4th 790, 794-795.) There is broad discretion in setting the amount, but it “may not be based merely upon the trial court’s subjective belief regarding the appropriate compensation; there must be a factual and rational basis for the amount ordered . . . .” (People v. Carbajal (1995) 10 Cal.4th 1114, 1125.)
There are secondary goals, such that courts have said: “There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor . . . any requirement the order reflect the amount of damages that might be recoverable in a civil action. [Citation.]” (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) Nevertheless: “[L]egislative intent, as stated in section 1202.4, subdivision (a)(1), is that the victim be made whole. Second, restitution of the victim is only ordered if the victim suffers economic loss. Without such loss, there is no restitution despite the fact that the goals of rehabilitation and deterrence are thereby frustrated. Third, section 1202.4, subdivision (b), provides for a substantial ‘restitution fine’ of $200 to $10,000, wholly apart from victim restitution, which serves punitive and deterrent goals of restitution. These factors suggest that the primary purpose of victim restitution is to fully reimburse the victim . . . .” (People v. Bernal (2002) 101 Cal.App.4th 155, 168 (Bernal).)
We cannot infer in this case that the court meant to impose more than a minimum separate fine under subdivision (b). Such a fine would be “deposited in the Restitution Fund in the State Treasury” (subd. (e)), whereas all amounts here were ordered paid “to the victims.” Moreover, this was a misdemeanor offense for which the maximum such fine could be no more than $1,000 (subd. (b)(1)) of the $38,000 that we find untethered to any demonstrated losses.
“(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states thoses reasons on the record.
Next, because restitution of demonstrated losses is the principal goal of section 1202.4, we cannot abrogate that goal in unlicensed contracting cases by importing the civil law remedy of allowing a full refund irrespective of losses (fn. 4, ante). Section 1202.4 has no such refund provision, and a victim who is made whole for losses under section 1202.4 is presumably still able to pursue the civil law remedy of a full refund. The People direct our attention to a case where a condition of probation for an unlicensed contractor included one that he “make restitution of his pro rata share of the money received from roofing jobs performed by the defendants” (In re Williamson (1954) 43 Cal.2d 651, 653), but they concede that the propriety of the award was not challenged as violating any make-whole victim restitution policy. A decision is not authority for propositions that were not considered in it. (People v. Myers (1987) 43 Cal.3d 250, 265, fn. 5.)
The People urge that disallowing a refund in this case will disserve public policy by permitting an unlicensed contractor to “retain the ill-gotten gains he has received for his substandard workmanship.” But this only begs the question as to whether anything in the record shows that the entire $49,300 was “gain,” ill-gotten or otherwise, or that it uniformly produced shoddy workmanship. The civil remedy of refunding “all compensation paid” clearly seeks to deter by depriving unlicensed contractors of all monetary benefit (Bus. & Prof. Code, § 7031, subd. (b); fn. 4, ante), but the restitution statute, in contrast, serves primarily to compensate victims for economic losses, not to compel disgorgement of gains irrespective of victim losses.
There was no prima facie showing justifying, or shifting the burden to May, regarding a full refund of the $49,300. On remand, the court shall reconsider that element of its award, bearing in mind that a refund for refund’s sake, rather than as a source of compensation for demonstrated losses, is not the primary goal of an award to a victim under section 1202.4, subdivision (f).
C. Offset for the Construction Bond Payment
Sommer testified that she “received a $10,000 payment from Claude May II’s bonding insurance,” a bond “connect[ed] with” the construction company license—“the license owned by the father.” May was unlicensed, and the Contractors’ State License Board website listed no employees for the company, not even May. The court ordered: “The $10,000 paid to [the Sommers] by [May’s] [f]ather’s bonding company is not credited toward the amount [May] must pay in restitution. [§ 1202.4, subds. (a)(1) & (f)(2); People v. Birkett (1999) 21 Cal.4th 226, 234; People v. Hamilton (2003) 114 Cal.App.4th 932, 941-942.] The evidence shows that the $10,000 payment was made by [May’s] [f]ather’s bonding company in connection with the [f]ather’s license as a contractor, not in connection with [May] who, of course, was unlicensed. [Compare People v. Hamilton, supra, 114 Cal.App.4th at pp. 941-942, with People v. Jennings (2005) 128 Cal.App.4th 42, 53-57.]”
May reasons to the contrary, as follows: Suzanne Sommer testified that she thought she was contracting with the company; May was the manager of the company, given his father’s illness, from which we should infer (there being no direct evidence) that May was responsible for procuring or renewing the bond for the company; the contractor’s bond in this case served its intended purpose of benefiting a “homeowner contracting for home improvement upon the homeowner’s personal family residence damaged as a result of a violation of this chapter by the licensee” (Bus. & Prof. Code, § 7071.5, subd. (a), referring to div. 3, ch. 9, the Contractors’ State License Law, id., § 7000 et seq.); May, although not licensed, should be deemed the “licensee” in this situation since he was the manager of the business; the bond should therefore be treated, in equity, as if paid for by him, making a credit appropriate; case authority cited by the court, involving payments from insurance rather than bonds, is inapplicable because an insurer generally has rights of subrogation against the beneficiary, whereas a bond company does not, thus making a denial of credit here a “windfall” to the Sommers in violation of the statutory goal of restitution. The People urge that the insurance cases are analogous and persuasive, but May chides the People for not responding in any depth to his subrogation distinction.
Bearing in mind that our review for abuse of discretion is deferential (People v. Carbajal, supra, 10 Cal.4th at p. 1121), we see no abuse in the denial of credit. First, whatever might be assumed generally about distinctions between insurance and surety bonds (discussed in Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 49-52), there is no evidence here of the particular type of bond or whether May spent any of his own effort or funds toward its procurement or maintenance. (See, e.g., Bus. & Prof. Code, §§ 7071.9-7071.10 [a qualifying individual who is not a proprietor, general partner or joint licensee, may have a separate “qualifying individual’s bond”].) May simply asks us to assume that he is paying twice for losses or that the Sommers will reap a double recovery. May had every opportunity to state his capacity and role, if any, in the bond yet offered no evidence on the point. The inference of his involvement would be stronger were he licensed, for a bond is a “condition precedent” of licensing (Bus. & Prof. Code, § 7071.6, subd. (a)), but, of course, May conceded below that he was not licensed. Also supporting the denial of credit, but ignored by May, is a letter, attached to the report, from Suzanne Sommer to the court complaining that May and his counsel had fought her over recovery on the bond and had “assumed responsibility” for defending “the bond holder, May II [the father]” at a bond hearing. She explains (emphasis hers): “I received the $10,000 HCC Surety check on July 28, 2006. This payment should not result in a reduction in restitution as the debt is not Rick’s[;] it is the father’s debt as he is the owner of the contractor’s license and the bond. May II now owes HCC Surety $10,000.”
May does not explain, nor do we see, the relevance of Suzanne Sommer’s impressions about whether she was dealing with May personally, the company, or both.
Second, the statute expressly makes the existence of subrogation rights immaterial. Section 1202.4, subdivision (f)(2), cited in the court’s order and quoted by the People, yet not mentioned by May, provides: “Determination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of any third party.” Lacking contrary argument, we presume that the provision (genesis discussed in People v. Birkett, supra, 21 Cal.4th at pp. 247-248, fn. 21) means what it says.
Third, there is an unsavory air to May’s argument that he should be equitably deemed the “licensee” (Bus. & Prof. Code, § 7075.1, subd. (a)), for it is precisely his lack of a license that rendered him guilty of a crime in the first place and, in turn, responsible for restitution. One can say that it is May who seeks a “windfall”—a credit as a benefit from his own wrong.
Fourth, lacking any evidence that May, rather than his licensed father, procured or maintained the bond, this case is strikingly similar to one where we noted, “[I]t makes no sense to excuse a defendant from paying restitution simply because of the fortuity that the victim has insurance coverage.” (People v. Sexton (1995) 33 Cal.App.4th 64, 72.) The bond payment here, for all we can tell, appears to be another such “fortuity.”
Fifth, insurance cases that May offers as bolstering his claim (while summarily dismissing them as inapposite) are distinguishable. The defendant in Bernal, supra, 101 Cal.App.4th 155, was held entitled to an offset for amounts that his automobile insurance carrier had paid to the victim in settlement, reasoning that they had been paid for by the defendant, were contractually owed and not subject to subrogation, and thus were not fortuitous (id. at pp. 165-168). Here, however, there is no evidence that May paid for the bond himself.
Bernal was extended in People v. Jennings, supra, 128 Cal.App.4th 42 (Jennings), to allow offsets to restitution by amounts paid in settlement through an insurance policy procured by the defendant’s mother, but where the evidence also showed that mother and son were both named on the declarations page and insured drivers under the policy, and the son, while living at home with the mother, had contributed toward the payments with earnings from a summer job. (Id. at pp. 48, 53-58.) Our distinctions are lack of evidence that May personally paid or contributed toward the bond or was named in the bond instrument; and the bond itself was not in evidence.
Most recently, Jennings was extended in People v. Short (2008) 160 Cal.App.4th 899 (Short) to allow offset to a drunk driving defendant who, in the course of driving for his employer, had caused a victim to lose an arm. The offset was for amounts paid on the defendant’s behalf in settlement, by his employer’s insurance carrier, in a civil suit brought by the victim against the employer and employee/defendant. (Id. at pp. 901-902, 904-905.) The extension was that Short deemed it immaterial that the defendant was neither named on the policy nor a contributor toward it. Short relied on the defendant’s driving in the course of employment, and thus the insurer’s contractual duty to provide coverage to him as a member of “the class of insureds covered under the policies.” (Id. at pp. 905.) Whatever else might distinguish Short, it is enough that May was not licensed or shown to be a listed “employee” and that, in a case where the criminal offense was unlicensed contracting, credit for the bond would be an ironic and nondeterrent windfall.
No abuse of discretion appears in the court’s denial of a $10,000 offset.
D. Lost Income
May’s challenge to the award of $5,000 in “lost income” does not dispute the hourly value that Suzanne Sommer placed on her work for the medical practice, or that the loss was sufficiently connected to his actions. He argues, however, that such loss cannot be awarded because Suzanne testified that she was not paid “wages” for her services. We reject the argument.
We liberally construe a victim’s right to restitution (People v. Keichler, supra, 129 Cal.App.4th at p. 1045), and this award accorded with explicit goals to compensate for “any economic loss” (§ 1202.4, subd. (a)(1)), for “suffered economic loss” (id., subd. (f)), and for “every determined economic loss incurred” (id., subd. (f)(3)). May stresses the words of subdivision (f)(3)(E), which we quote in a broader context: “[T]he restitution order . . . shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, all of the following: [¶] . . . [¶] (E) Wages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution. . . .” (§ 1202.4, subd. (f)(3).) Noting that Sommer testified that she did not receive a direct “salary” for her work at the medical practice and did not seek restitution for any time spent “preparing to come to court,” May claims the statute does not authorize her kind of lost income. He invokes the principle of ejusdem generis, urging that, “[b]y explicitly spelling out the types of lost ‘income’ that a victim may recover (‘wages,’ ‘commission income’ and ‘profit’) the Legislature impliedly excluded others.” We disagree.
While May says that he invokes ejusdem generis, his position that stating one thing implicitly excludes others is arguably closer to the maxim, expressio unius est exclusio alterius (Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 410), but he presents no briefing on the latter principle.
First, by artfully substituting the lower court’s phrase, “lost income,” May mischaracterizes the statute. Its specified examples are not of “lost income” but, rather, the broader phrase, used throughout the statute, “economic loss” (subds. (a)(1), (f) & (f)(3)). Second, it is clear that the listed examples are not narrowing. Subdivision (f)(3) defines economic loss as “including, but not limited to” the examples that follow. The quoted language “is a phrase of enlargement” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1389). It cannot be read to include “extraordinary” things (ibid. [insufficient inference of authority for commission to award punitive damages]), but the lost income here was not an extraordinary type of economic loss. Unsalaried contributions of time and skill to family businesses are common. Furthermore, in light of the specific mention in the same subdivision of such economic losses as lost wages, profits and commissions (subds. (f)(3)(D)-(E)), medical and mental health counseling expenses (subds. (f)(3)(A)-(B)), interest and debt collection expenses (subds. (f)(3)(G)-(H)), relocation and security expenses (subds. (f)(3)(I)-(J)), and expenses to retrofit homes or vehicles for disabled victims (subd. (f)(3)(K)), it would be anomalous to infer an exclusion of lost unsalaried income from a family-run business. “ ‘[T]he word “loss” must be construed broadly and liberally to uphold the voters’ intent.’ (Ibid.) Because the statute uses the language ‘including, but not limited to’ these enumerated losses, 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. [Citation.]” (People v. Keichler, supra, 129 Cal.App.4th at p. 1046.) May does not challenge the fact that he caused these losses.
May similarly gains nothing by invoking ejusdem generis. That interpretive doctrine restricts the meaning of general words to things of the same general nature or class as those listed (International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 342; Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1160), and lost income is closely akin to the direct and indirect losses specifically listed in subdivision (f).
Finally, People v. Friscia (1993) 18 Cal.App.4th 834 (Friscia), on which May relies, is easily distinguished. Friscia struck an award for time spent by embezzlement victims in examining their books to assess their losses, and the provision for that sort of loss was defined at the time solely as “ ‘wages or profits lost due . . . to time spent as a witness or in assisting the police or prosecution[.]’ ” (Id. at p. 837, quoting former § 1203.04, subd. (d), repealed Stats. 1995, ch. 313, § 8, p. 1762.) There was no evidence that the victims had ceased drawing their usual wages or profits during their accounting time (id. at pp. 837-838), and the statute did not have the enlarging language, “including, but not limited to,” that we have here (§ 1202.4, subd. (f)(3); see People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1410 & fn. 3).
No abuse of discretion is shown in the inclusion of the lost income.
E. Ability to Pay the Monthly Amount
May attacks, as arbitrary and an abuse of discretion, the court’s order that he pay restitution at the rate of $4,000 a month. He complains that there was no evidence of his income, expenses, or net worth beyond “unreliable speculation” in the form of “hearsay” statements from Suzanne Sommer that he had a fleet of vehicles, lived in a million-dollar home, and could afford expensive private counsel. May offered no evidence himself on his ability to pay, but claims that he had no warning that a monthly amount would be set based on the hearing. He asserts that Judge Kennedy ordered it because he was “new to the bench” and unfamiliar with a county practice of having monthly payments set post-order through “Court Compliance Services” or “CCU.” The People respond that May forfeited the issue by failing to raise or present evidence on it at the hearing, and that substantial evidence supports the monthly payments in any event. May counters that he did not forfeit the issue; rather, he had no warning that his ability to pay was relevant or that the monthly payment would be ordered.
These issues are unnecessary to decide. Our reversal and remand for further proceedings (part III., B., infra) means that the court will recalculate the restitution amount, making a recalculation of the monthly payment necessary as well.
IV. DISPOSITION
That part of the order calling for restitution of $49,300 in amounts paid by the Sommers to May is reversed and remanded for reconsideration consistent with part III., B., of this opinion; in all other respects, the order is affirmed.
We concur: Kline, P.J., Lambden, J.
Remedial work by Bowles is listed as: removing and replacing sheetrock ($200 + $800); retiling a vanity top and refinishing the vanity ($700 + 550); replumbing, framing and insulating a bath tub ($3,050); electrical ($310); and a fan vent ($60).
The $5,000 for work by Fuller included: damaged, loose, or unfinished sheetrock ($900); faulty joints in water lines ($600); overloaded electrical work and unsafe “JB’s” ($450); incomplete molding ($200); an exterior door to meet fire egress requirements after May had removed a compliant door to replace it with a bay window ($1,500); installing tempered glass in a tub and shower ($150); repairing damaged kitchen tile ($100); and insulating exterior walls ($250). Sommer testified that these eight expenses totaled about $5,000, but our reckoning yields only $4,150.
The $14,895 estimate by Fuller for work still to be done consisted of: refinishing oak floors in a bedroom and hall damaged by water from a burst pipe ($1,175); installing three ceiling fans ($450); installing new keyed locks on entry and bath doors ($270); and removing and replacing a guest bath tub ($5,600) and a damaged bay window ($7,400).
“(1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.”