Opinion
A146650
02-21-2018
THE PEOPLE, Plaintiff and Respondent, v. ELIZABETH MARGARET ALDRICH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC080777A)
This is an appeal from the trial court's postjudgment order requiring appellant Elizabeth Margaret Aldrich to pay $124,362.94 in restitution to victim M.M. This restitution order followed appellant's no contest plea to three counts of first degree burglary and one count of identity theft, after which the trial court sentenced her to prison for a total term of five years, four months. We affirmed the judgment and sentence in a nonpublished decision filed on October 27, 2015. (People v. Aldrich (Oct. 27, 2015, A143517 [nonpub. opn.].) Appellant now appeals from the restitution order subsequently entered by the trial court on the ground that it lacks the support of substantial evidence and, as such, is an abuse of the court's discretion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 27, 2014, an amended information was filed charging appellant with four counts of first degree burglary (Pen. Code, § 460, subd. (a)) (counts one, seven, eight and ten); two counts of identity theft (Pen. Code, § 530.5, subd. (a)) (counts two and nine); one count of second degree commercial burglary (Pen. Code, § 460, subd. (b)) (count three); one count of receiving stolen property (Pen. Code, § 496, subd. (a)) (count four); one count of forgery (Pen. Code, § 470, subd. (a)) (count five); and one count of possessing access card information with intent to defraud (Pen. Code, § 484e, subd. (d)) (count six).
All statutory citations herein are to the Penal Code unless otherwise stated.
The charges in counts one and two arose from the following events. On December 11, 2013, victim M.M. rented her San Francisco condominium to appellant and an unidentified male. After giving the couple her keys, M.M. discovered the credit card appellant used for the rental was fraudulent. After returning home, M.M. found her condominium ransacked. M.M. alerted the police and, on December 12, 2013, officers went to her condominium, where they found it "in disarray" and discovered a locked closet with M.M.'s personal information that had been broken into. Among the missing items from the condominium were M.M.'s passport, birth certificate, social security card and personal checks.
In the next month, M.M., first, discovered and reported additional fraud to her identity and, thereafter, discovered that both her bank accounts and her credit cards had been fraudulently accessed by a user (to wit, appellant) who had obtained, without authorization, in excess of $20,000 from her accounts. It was later determined that appellant had also changed the address linked to M.M.'s accounts to a Southern California address, and had used M.M.'s birth certificate, social security card and passport to lease an apartment in M.M.'s name for $3,500 monthly.
On June 27, 2014, appellant entered a plea of no contest to three counts of first degree burglary (§ 460, subd. (a)) (counts one, seven and ten), and one count of identity theft (§ 530.5, subd. (a)) (count two), and the remaining counts were dismissed pursuant to a negotiated plea.
Counts one and two involve M.M. The other counts involve two separate incidents, one occurring in San Francisco and the other in Half Moon Bay, which are not relevant to this appeal. More complete descriptions of these unrelated incidents may be found in our nonpublished decision filed October 27, 2015.
On September 4, 2014, after obtaining new counsel, appellant moved to withdraw her plea. The trial court, after a hearing, denied her motion. Accordingly, on September 19, 2014, the trial court denied probation and sentenced appellant to a total term of five years, four months in prison. The trial court also granted appellant a total of 460 days of custody credit, and ordered her to pay a $300 restitution fine, $120 criminal conviction assessment, and $160 court operations assessment fee. The matter was then continued to December 12, 2014, for a restitution hearing.
Prior to this hearing, appellant filed her first notice of appeal, on November 7, 2014, limiting her request for review to the sentence or matters occurring after her plea. Appellate counsel appointed to represent her thereafter filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 in which he raised no issue for appeal and asked for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 123-124.) After undertaking this independent review, as previously mentioned, we affirmed the trial court's judgment in a nonpublished decision filed October 27, 2015.
The restitution hearing was subsequently held on August 20, 2015. In anticipation of this hearing, M.M. filed a statement with the probation department, as well as several spreadsheets and attached documents (including invoices), describing the specific items that had been lost or damaged as a result of appellant's crimes, as well as the impact of these crimes on M.M.'s professional career as an interior designer. M.M. did not appear to testify at the hearing, and appellant presented no evidence to challenge her statement to the probation department and accompanying documents, which the court entered into evidence. Following this hearing, the court awarded M.M. a total of $124,362.94 in restitution, prompting this appeal.
Appellant does not challenge on appeal the restitution awards ordered for the other victims of her crimes in this case.
DISCUSSION
The sole issue on appeal is whether the trial court's restitution order to M.M. in the amount of $124,362.94 is unsupported by substantial evidence and, thus, amounts to an abuse of discretion. The following factual background is relevant.
As mentioned above, in anticipation of the contested restitution hearing, the victim M.M. submitted to the probation department a statement detailing her economic losses arising from appellant's crimes. Attached to this statement were several spreadsheets and supporting documentation (including several invoices). In her statement, M.M. described experiencing, as a result of appellant's crimes, "countless panic attacks, constant anxiety, and severe insomnia." M.M. also described having repeated nightmares involving appellant, as well as chronic sleeplessness. M.M. further reported having to move out of her home due to her fears that appellant would return, and the unease she felt performing previously normal activities such as walking around her neighborhood.
M.M. also described in her statement the countless hours spent as a result of appellant's crimes on legal, financial and investigative matters; the time she had lost in other realms of her professional and personal life; and the financial losses she suffered aside from appellant's thefts, including "a significant loss of income." Finally, M.M. noted several ongoing challenges, including having to rehabilitate her previously "excellent" credit history that was destroyed by appellant's crimes. In concluding her statement, M.M. advised the probation department that the "damage the suspect has created by her actions have negatively consumed every aspect of my personal and professional life." The probation department recommended the court grant M.M.'s request in full.
At the subsequent hearing (which M.M. declined to attend), the trial court examined each of the items claimed by M.M. to have been lost or damaged as a result of appellant's crimes and the documentation provided as evidentiary support. After accepting most, but not all, of the loss items on M.M.'s spreadsheets, the trial court awarded her $124,362.94. On appeal, appellant contends the trial court's order was an abuse of discretion lacking the support of substantial evidence. The following rules guide our review of her contention.
"It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." (Cal. Const., art. I, § 28, subd. (b)(13)(A).) "Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (Id., subd. (b)(13)(B).)
In accordance with this constitutional mandate, section 1202.4 was enacted, and provides in relevant part: "[I]n 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 or victims or any other showing to the court." (§ 1202.4, subd. (f).) Further, restitution under this provision "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, the victim's lost wages or profits and relocation expenses incurred to move away from the defendant. (§ 1202.4, subd. (f)(3).) "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." (§ 1202.4, subd. (f)(3)(A).)
"A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. ' "[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt." ' [Citation.]" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.)
Here, the trial court's restitution order was based on M.M.'s statement to the probation department and attached supporting documentation listing over $185,721.63 in losses incurred as a result of appellant's property and identity theft. Appellant contends that this detailed showing lacks credibility and, as such, that M.M. failed to make a prima facie showing of her losses. However, while appellant insists a victim must "do more than merely provide the probation officer with a bare claim as to the amount of loss," she also admits that, in this case, "[M.M.] provided the probation officer with a set of four spreadsheets" (as well as other supportive documents, including actual invoices). No more was required of M.M.: "Section 1202.4 does not, by its terms, require any particular kind of proof. However, 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 stolen or damaged property. [Citation.] 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.]" (People v. Gemelli, supra, 161 Cal.App.4th at pp. 1542-1543.)
Based on these principles, we agree with the trial court that the People, through M.M.'s statement and attachments, made a prima facie showing of economic loss that shifted the burden to appellant to disprove M.M.'s claims, notwithstanding her decision not to testify. (People v. Millard (2009) 175 Cal.App.4th 7, 26 ["a prima facie case of restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss"].) We further agree with the trial court that appellant failed to meet this burden. The record reflects that the trial court carefully reviewed M.M.'s documentation supporting her claimed losses to the itemized list that she provided to the probation department. With respect to each item claimed as lost or damaged by M.M., the trial court confirmed the value of the item was supported by her documentation before including it in the restitution award. In doing so, the court explained: "Most of the amounts are correct and those that aren't correct, I put yellow highlighter on the invoice or the list. There were several amounts that were not exactly accurate; for example, there's an . . . amount of $3,689 for wall scratched or damaged when actually there was $3,295 according to the backup document." The court also disallowed restitution for several items, including Calphalon pans from Bloomingdale's and custom sofa damage ($1,500), due to the lack of supporting documentation. The court then calculated the total amount of M.M.'s economic loss twice, reaching the same amount both times, to ensure its accuracy.
While appellant laments the lack of evidence corroborating M.M.'s losses in the police reports associated with her crimes, she offers no evidence to dispute the value claimed for M.M.'s lost and damaged items. As explained above, section 1202.4 does not, by its terms, require any particular kind of proof, and the defendant bears the burden to disprove the victim's prima facie showing of loss. (People v. Gemelli, supra, 161 Cal.App.4th at pp. 1542-1543 [under ordinary circumstances, an " 'owner's opinion of the value of his or her property is sufficient evidence to establish value' "].)
Further, while appellant challenges as incompetent the evidence relating to M.M's reported lost income, the governing statute expressly provides for a restitution award inclusive of lost wages and profits, including both wages and profits lost as a result of the crime and those lost "due to time spent as a witness or in assisting the police or prosecution." (§ 1202.4, subd. (f)(3)(D), (E).) Applying this provision, the trial court accepted M.M.'s claim that she lost $25,125 in unbilled hours and $19,750 in work hours as a result of appellant's crimes. The court also accepted M.M.'s statement to the probation officer that she lost work for her interior design business due to the "overwhelming demand of phone calls, meetings, police communication, email documentation, and the like . . . ." At the same time, the court rejected as speculative her claim to have forfeited $55,000 in lost clients. Aside from insisting this evidence is insufficient to support her claims, appellant offers no evidence that M.M.'s showing was incorrect or incomplete.
Appellant contends that section 1202.4, subdivision (f)(3), required M.M. to submit "evidence of 'income during the 12-month period prior to the date of the crime . . . .' " She misrepresents the statutory language, which limits this requirement to a victim seeking to recover lost commissions: "Lost wages shall include commission income as well as base wages. Commission income shall be established by evidence of commission income during the 12-month period prior to the date of the crime for which restitution is being ordered, unless good cause for a shorter time period is shown." (§ 1202.4, subd. (f)(3)(D), (E).)
Thus, given this record of the trial court's thoughtful consideration of the substantial evidence submitted by M.M. to support her claimed losses, as well as the court's careful calculations of her overall losses, we reject appellant's claim that the court lacked a rational and factual basis for the amount of restitution ordered. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543; People v. Thygesen (1999) 69 Cal.App.4th 988, 992 [courts have wide discretion to order restitution in an amount sufficient to make the victim whole].) Accordingly, we affirm the trial court's order requiring appellant to pay M.M. restitution in the amount of $122,362.94. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681 [" 'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . .' "].)
The People concede the trial court mistakenly awarded M.M. $5,910.12 to cover damage to her custom sofa, rather than $3,910.12, the actual value of her loss according to the invoice from a company called Viesso submitted by M.M. with her statement. In light of the court's easily corrected drafting error, we reduce the award of restitution to M.M. by $2,000.
DISPOSITION
The trial court's order awarding restitution to M.M. of $124,362.94, less $2,000 for damage to her custom sofa (for a revised award of $122,362.94), is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Pollak, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------