Opinion
D058536 Super. Ct. No. SCD210535
12-09-2011
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND ANDERSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Amelia L. Meza, Judge. Affirmed.
Raymond Anderson entered a negotiated guilty plea to six counts of grand theft (Pen. Code, § 487, subd. (a)), and one count of unauthorized use of personal identifying information of another for unlawful purposes (§ 530.5, subd. (a)). For each of these counts, Anderson also admitted allegations that the victims' aggregate losses exceeded $150,000 (former § 12022.6, subd. (b), now subdivision (a)(2); see Stats. 1992, ch. 104, § 1, replaced and renumbered by Stats. 1997, ch. 551, § 2), and that he committed multiple felonies involving fraud or embezzlement resulting in loss to the victims of more than $500,000 (§ 186.11, subd. (a)(2)). The trial court sentenced Anderson to eight years in prison and ordered him to pay fines and victim restitution. (§ 1202.4, subd. (f).) After a restitution hearing, the trial court ordered Anderson to pay a total of $672,360 in restitution to his 16 victims.
All further undesignated statutory references are to the Penal Code.
Anderson appeals, contending the trial court erred in determining the amount of restitution to be paid to three of his victims. Anderson asserts that the amount of restitution ordered by the trial court for each of these three victims is not supported by sufficient evidence of the losses and was not properly offset by the value of assets received by each victim. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Between October 2003 and April 2007, Anderson took more than $600,000 from several victims, who believed they were investing in Anderson's business ventures, and spent the money on various personal expenses. Anderson was arrested, and as noted above, pleaded guilty to several theft offenses and admitted sentencing enhancement allegations as to each count. The trial court sentenced Anderson to eight years in prison and ordered him to pay fines and victim restitution.
At the restitution hearing, Anderson challenged the amount of restitution requested by the People for three of the 16 victims. In support of the victims' claims, the People submitted the probation report, which provided an accounting of the monies taken from each victim. The probation report was based on police reports, the preliminary hearing transcript, and the probation officer's telephone interviews with each victim. According to the probation report, victim B.N. gave Anderson "all [his] savings and maxed out [his home equity line of credit]," totaling $32,050; victim S.H. gave Anderson a total of $165,000 in cash and checks; and victim J.H gave Anderson checks totaling $40,000. Anderson spent the victims' money on personal expenses.
DISCUSSION
A. Standard of Review
The trial court has broad discretion to calculate the amount of restitution ordered. (People v. Giordano (2007) 42 Cal.4th 644, 663-664.) We review a trial court's restitution order for abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498 (Mearns).) Abuse is established only if the trial court's decision is arbitrary or capricious (People v. Akins (2005) 128 Cal.App.4th 1376, 1382) or is based on a demonstrable error of law (People v. Jennings (2005) 128 Cal.App.4th 42, 49). No abuse of discretion is shown simply because the order does not reflect the exact amount of the loss. (Akins, at p. 1382.) We will find no abuse of discretion where there is a factual and rational basis for the amount of restitution ordered by the trial court. (Mearns, at p. 498.) B. The Trial Court's Restitution Order Was Supported by Sufficient Evidence for All Victims
The general principles governing the determination of the amount of victim restitution in criminal cases are well established. We start from the premise that "[a] victim's restitution right is to be broadly and liberally construed." (Mearns, supra, 97 Cal.App.4th at p. 500.) When a criminal defendant's conduct causes economic losses to his victim, the trial court must order the defendant to make restitution "based on the amount of loss claimed by the victim or victims or any other showing to the court." (§ 1202.4, subd. (f).) "The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (§ 1202.4, subd. (g).) In determining the amount of restitution, the trial court may consider the probation report and statements from victims contained in the report about the value of stolen property as prima facie evidence of loss. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).) "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." (Ibid.)
Applying these general principles to this case, we conclude that the trial court did not abuse its discretion in setting the amount of restitution it ordered Anderson to pay his victims. At the restitution hearing, the People presented the probation report, which contained statements from each victim about the value of his or her loss. The probation report was prepared based on telephone interviews with each of Anderson's victims during which each victim reported the amount of his or her loss. Specifically, B.N. "confirmed the restitution amount as being $32,050"; S.H. stated he wrote checks totaling $150,000 and gave $15,000 in cash to Anderson; and J.H. stated her loss totaled $40,000. These statements from the victims as to the amounts of their losses constituted prima facie evidence of the amount of loss. (Gemelli, supra, 161 Cal.App.4th at p. 1543.)
Where, as here, "the probation report includes a discussion of the victim's loss and a recommendation on the amount of restitution, the defendant must come forward with contrary information to challenge that amount." (People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406 (Pinedo).) Although Anderson testified at length at the restitution hearing about the victims' involvement in his schemes and other irrelevant matters, he provided no evidence showing that the victims' calculations of their losses were inaccurate. Therefore, on the record before us, we have no basis for finding the restitution amounts claimed by the victims were unreasonable. (Id. at p. 1407.)
Anderson also contends that the victims' losses should have been offset by the value of services and assets they received from him. As the party seeking an offset, Anderson had the burden of proof to establish the facts entitling him to an offset and the amount of that offset. (Evid. Code, § 500; People v. Vasquez (2010) 190 Cal.App.4th 1126, 1137.) Although Anderson claims that B.N., S.H. and J.H. received "business travel and expenses" and "value in [Anderson's] patents," which should be credited against each of the three victims' restitution amounts, he presented no evidence at the restitution hearing of the value of the business travel, expenses or patents he claimed the victims received. Accordingly, we hold that the trial court did not abuse its discretion in following the probation officer's recommendations regarding restitution. (Vasquez, at pp. 1137-1138; Pinedo, supra, 60 Cal.App.4th at pp. 1406-1407.)
DISPOSITION
The order is affirmed.
IRION, J. WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.