Opinion
H042772
06-22-2017
THE PEOPLE, Plaintiff and Respondent, v. SALVATORE TALAMO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F25973)
Defendant Salvatore Talamo was ordered to pay $221,866.94 as victim restitution following his plea of no contest to embezzlement. On appeal, defendant asserts that the trial court erred because the order was not supported by substantial evidence, and that he was denied due process because the restitution hearing was not a fair proceeding. For the reasons stated here, we will affirm the order.
I. TRIAL COURT PROCEEDINGS
Defendant worked at Paradise Park Masonic Club, Inc. (Paradise Park) housing community as a bookkeeper. His job duties required him to maintain financial records, pay bills, and take in money received by the financial office. Defendant was given access to Paradise Park's Wells Fargo credit card, and had the ability to write checks from Paradise Park accounts. The operations manager at Paradise Park had noticed some suspicious charges on the Wells Fargo credit card, and defendant was fired from Paradise Park.
Paradise Park's Chief Financial Officer Gary Brandenburg hired Paradise Park's former accountant, Dana Price, to conduct a forensic accounting of the checking account and credit card. Price reviewed Paradise Park's bank statements, canceled checks, QuickBooks account, and credit card statements for the period of defendant's employment. The accounting showed a total loss of $134,418 as a result of defendant's conduct while acting as bookkeeper for the park. This amount included $97,571.55 in checks that defendant wrote to himself. It also included $6,649.60 in fraudulent credit card transactions, and $10,925 in checks defendant wrote from the Paradise Park account to pay his rent, insurance premiums, home improvements, and chiropractor. The accounting revealed that defendant used the Paradise Park accounts to pay for his son's private school tuition, his wife's car, and his county taxes. The total amount defendant embezzled from Paradise Park was $176,373.20.
Defendant was charged with grand theft (Pen. Code § 487, subd. (a)) and fraudulent access card information (Pen. Code § 484g, subd. (a)). The complaint alleged that the crimes involved fraud or embezzlement resulting in a loss of more than $100,000 (Pen. Code § 186.11, subd. (a)(3)). Defendant pleaded no contest to both charges, and admitted the enhancement. The court sentenced defendant to three years in prison, and set the matter for a restitution hearing.
At the restitution hearing, Sandra Rauschhuber testified that she became the office manager at Paradise Park after defendant was fired. She testified that Paradise Park incurred losses as a result of defendant's embezzlement. These included $5,618.87 in eight payroll tax penalties as a result of defendant's failure to pay the payroll taxes while he was working for Paradise Park; $10,737 for office staff hired to replace defendant; $16,482.72 for the services of a forensic bookkeeper; $275 to a certified public accountant hired to consult with Paradise Park after the fraud was initially discovered; and $22,202 in audit fees from another CPA. The probation report filed in this case itemized these losses.
During the hearing, defense counsel questioned Rauschhuber about bank fees incurred as a result of defendant not paying the park's bills. At one point, Rauschhuber stated: "[W]e are just disputing the finance and late charges on that Visa bill. Any of the charges for items have already been dealt with in the previous hearings. [¶] What I'm looking for on that Wells Fargo statement are only bank fees incurred that would not have been incurred if [defendant] had paid the bill, not incurred a late charge, or overage charge." Defense counsel then asked, "You're not asking for any of the money involved with the Wells Fargo account, just solely the fees?" Rauschhuber said yes, at which point the court stated: "To be clear, the Court is going to order a full amount of restitution that would include the amount paid by the insurance company. They're not a named victim in the case, however, the total amount, the embezzlement, all the charges, late fees, everything we're talking about here would be subject to an amount ordered by the Court. ... [¶] I'm not going to go into every single item on these amounts when we're talking about this amount of money. I am convinced by the work that has been done, that the amount that is requested there's a process there. And it's a reasonable process and a reliable process for the Court. [¶] If certain ones stand out, go ahead and ask her about that. And if she can answer, fine. But it wouldn't be reasonable to have a line by line by line for this type of embezzlement. If certain items stand out, fine. [¶] I'm going to order the full amount, not just the fees."
Defense counsel disagreed with the court, and noted that a line-by-line challenge was necessary, and the court reiterated that counsel should focus on specific charges that defendant wished to challenge. Defense counsel then proceeded to ask Rauschhuber about specific transactions involving Precision Roller, Kustom Culture Design, Santa Cruz Electronic, Toner Price, and Staples. According to Rauschhuber, the Precision Roller invoice was addressed the office secretary when defendant worked for Paradise Park. Similarly, the Kustom Culture Design invoice was addressed to an employee of Paradise Park's fire department.
When asked whether the Precision Roller and Kustom Culture Design invoices were accurate or forged, Rauschhuber could not say because defendant altered "a lot of documents" while he worked for the park. Rauschhuber testified that Paradise Park did not currently do business with Santa Cruz Electronic and Toner Price, though she could not say whether the community did business with the companies during the time that defendant worked for the park. Paradise Park did do business with Staples.
Rauschhuber testified further that the office secretary and defendant worked together in Paradise Park's office, that packages were often delivered to the office, and that defendant frequently forged signatures and covered up his thefts with seemingly real transactions from the time he was hired.
At the conclusion of the presentation of evidence, defense counsel reiterated her objection to the Precision Roller and Kustom Culture transactions being included in the restitution order, because the transactions were "demonstrative of the fact that ... a lot of these things weren't even ordered by or received by [defendant]." Defense counsel argued that there was no evidence showing payroll tax penalties. In addition, defense counsel stated that it was reasonable to conclude that no additional bank fees were imposed by Rabobank and Wells Fargo because the accounts showed that payments were made.
The court ordered defendant to pay restitution to Paradise Park in the amount of $221,866.94, which included the $176,373.20 claimed to be the actual amount embezzled, and $45,493.74 of additional losses incurred as a result of defendant's actions. The court denied Paradise Park's request for $10,737 as reimbursement for the expenses associated with hiring a new employee to replace defendant after he was fired.
II. DISCUSSION
Penal Code section 1202.4, subdivision (f) requires courts to order victim restitution in every case in which a victim suffers economic loss as a result of a defendant's conduct. "The burden is on the party seeking restitution to provide an adequate factual basis for the claim." (People v. Giordano (2007) 42 Cal.4th 644, 664.) " 'Section 1202.4 does not, by its terms, require any particular kind of proof.' " (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320 (Holmberg).) Moreover, "the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner's statement made in the probation report about the value of the stolen or damaged property." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) 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." (People v. Prosser (2007) 157 Cal.App.4th 682, 691.) "The standard of proof at a restitution hearing is preponderance of the evidence, not reasonable doubt." (Holmberg, supra, at p. 1319.)
We review a victim restitution award for abuse of discretion. (Holmberg, supra, 195 Cal.App.4th at p. 1320.) " '[T]he court's discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole.' " (People v. Millard (2009) 175 Cal.App.4th 7, 26.) " ' "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." ' " (Holmberg, supra, at p. 1320.) "If there is no substantial evidence to support the award, and assuming no other rational explanation, the trial court will have obviously abused its discretion." (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.)
At the restitution hearing, defendant presented a number of specific invoices that he argued were not attributable to his criminal conduct and should not be included in the final award. Defendant introduced the invoices into evidence, and cross-examined Rauschhuber about them. Specifically, defendant disputed that he was responsible for $109.95 to Precision Roller, for a Minolta drum unit, delivered to Paradise Park; $139 to Kustom Culture Design, for T-shirts shipped to the Paradise Park Fire Department; $238.04 to Santa Cruz Electronic; $43.47 to Toner Price; $242.86 to Staples; and $170.29 to ProBuild. Defendant argues that Rauschhuber's testimony about these transactions was "vague and equivocal," and that she could not provide evidence of a specific connection between defendant's conduct and the transactions.
Defendant's evidence revealed that the transactions with Precision Roller and Kustom Culture Designs were in the names of other Paradise Park personnel, not defendant. Defendant also showed that Paradise Park regularly did business with Staples. However, the court had evidence in the probation report that included the park's itemized list of losses, as well as Rauschhuber's testimony that defendant doctored "a lot of documents" in an attempt to cover up his thefts. Substantial evidence supported the court's restitution order. Defendant did not satisfy his burden to demonstrate that the amount of the loss is other than that claimed. (People v. Prosser (2007) 157 Cal.App.4th 682, 691.)
Defendant also argues he was denied due process at the restitution hearing because the court would not entertain a "line-by-line" challenge to the claimed losses is without merit. Due process requires that a defendant be provided notice of the amount of restitution requested and a meaningful opportunity to contest it. (People v. Carbajal (1995) 10 Cal.4th 1114, 1125; see also Pen. Code, § 1202.4, subd. (f)(1).) Here, defendant was provided notice, and participated in a restitution hearing over a period of two days. He introduced invoices into evidence, and challenged the conclusion that the transactions stated therein were attributable to him. Indeed he cross-examined Rauschhuber extensively about the invoices.
Defendant's argument that "the trial court essentially denied [him] the opportunity to show that many of the expenses were not the result of his conduct," because the court stated that it would not entertain a "line-by-line" challenge to the amount requested is without merit. Defendant takes the court's statement out of context. The statement responded to a colloquy between defense counsel and Rauschhuber where there appeared to be some confusion about the amount and scope of requested restitution. Specifically, defense counsel was questioning Rauschhuber about the bank fees associated with bills that were not paid by defendant. Defense counsel asked Rauschhuber, "You're not asking for any of the money involved with the Wells Fargo account, just solely the fees?" At that point the court interjected and clarified that it would be ordering "a full amount of restitution that would include the amount paid by the insurance company." The court went on to state that it would not "go into every single item on these amounts." The court finished by stating, "[i]f certain [items] stand out, go ahead and ask her about that. And if she can answer, fine." Following this exchange, defendant went on to cross-examine Rauschhuber about each of the challenged transactions. Contrary to defendant's argument, defendant was afforded a full and meaningful opportunity to contest the restitution requested.
III. DISPOSITION
The order is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P.J. /s/_________
Elia, J.