Opinion
A167070
12-19-2023
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. WILLIAM ARTHUR BAME, Defendant and Appellant.
NOT TO BE PUBLISHED
(Lake County Case No. CR959706)
PETROU, J.
William Bame, a general contractor, and Suzanne and Martin Trujillo (collectively, Trujillos) entered into a contract for Bame to rebuild the Trujillos' home. Without the Trujllos' agreement or request, Bame stopped work on the project after the Trujillos had paid him the great majority of the payment due under the contract. After Bame ceased work on the partially built and uninhabitable home, the Trujillos paid another contractor to complete the work.
Bame pleaded no contest to a charge of improperly diverting funds intended for construction services in violation of Penal Code section 484b.Following a contested restitution hearing, the trial court ordered Bame to pay the Trujillos restitution in the amount of $281,341.30. Bame contends the court erred in determining the amount of restitution owed. We agree in part and modify the order.
All further statutory references are to the Penal Code unless otherwise stated.
Factual and Procedural Background
In 2015, the Trujillo home was completely destroyed by fire. In February 2018, the Trujillos signed a written contract with Bame's company, Bame Construction, Inc., for $667,700 to rebuild their home in one year according to plans approved by the county.
In February 2018, work on the house began. As the work proceeded, Bame issued periodic" 'Progress Payment'" invoices. Payments were made on behalf of the Trujillos through Chase Bank, their mortgagee, which held and intermittently dispersed funds to Bame from the $667,700 the Trujillos had received in insurance proceeds. Around June 2019, Bame stopped work on the house due to financial problems. Bame informed the Trujillos he could no longer afford to do the job and was filing for bankruptcy. Up to this point, the Trujillos had paid Bame $621,702.05.
The Trujillos incurred $13,606.50 in attorney's fees to file a civil suit against Bame and to make a complaint to the Contractors State License Board (license board). The license board referred the matter to the District Attorney's office, which initiated the instant criminal case.
Mrs. Trujillo testified they incurred $16,606.11 in attorney's fees. This amount, however, does not reflect the $3,056.39 in fees subtracted from their three-page list of claimed costs expenses. Unless this amount is subtracted, it is not possible to reach the $281,828.80 the Trujillos testified and presented as their total loss. On cross-examination at the hearing, Mrs. Trujillo did not dispute that there had been a $3,056.39 refund.
The license board had a professional estimate prepared of the cost to complete the work contemplated in the contract between the Trujillos and Bame, which included correcting work which was defective or did not conform to the approved plans. According to the professional estimate - which was based on review of the approved plans, the contract between Bame and the Trujillos, photos of the original home, visits to the property to inspect site conditions, and interviews with the Trujillos - the cost of completion was estimated to be $128,537.
The Trujillos paid Lake County Contractors, Inc. (LCC) $126,269.50 to finish the project. They also directly paid a total of $31,193.80 to three vendors that Bame had not paid: $29,018.80 to Kelseyville Lumber; $1,125 to Turner Insulation; and $1,050 for plumbing services to repair a cracked pipe. For these various payments after Bame's departure, the Trujillos paid out-of-pocket, using retirement funds to complete the project to do so. At some point, Chase provided the Trujillos the approximately $45,000 remaining from their insurance proceeds, which they used to pay LCC.
In 2022, Bame entered a no contest plea to one felony count of improperly diverting funds intended for construction services in violation of Penal Code section 484b and was sentenced to two years of probation. His probation terms required he make restitution to the Trujillos in an amount to be determined at a later hearing. The prosecution sought restitution for the Trujillos in the amount of $281,828.80 based on an itemized list of losses admitted into evidence. The list included the $126,269.50 the Trujillos paid to LCC; the $31,193.80 in direct payments to vendors; the $13,606.50 in attorney's fees; and $110,759 in costs paid to Bame for two dozen items which were done improperly or poorly, had not been delivered, or were overcharged.
Bame contested the claimed restitution amount in a written brief and argued restitution should be capped at $100,000. At the restitution hearing, both Mrs. and Mr. Trujillo testified about Bame's work, including items that had not been completed, and their losses. Mrs. Trujillo noted that after Bame stopped work, the house sat for two-and-one-half years unfinished until they could pay to finish it. Bame also testified, explaining the work he completed before exiting the project. In addition, he marked as exhibits photographs he took of the house in May 2019, showing the level of work completed. Following the hearing, the trial court ordered Bame to pay $281,341.30 in restitution, almost the entire amount they requested less $487.50 retracted by Mrs. Trujillo. This appeal followed.
Discussion
A. Applicable Law
Section 1202.4, the general restitution statute, mandates that a victim of crime who suffers an economic loss because of the crime shall receive restitution directly from the defendant convicted of the crime in accordance with subdivision (f). (§ 1202.4, subd. (a)(1), (3).) Subdivision (f) provides in 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.... The court shall order full restitution." (§ 1202.4, subd. (f).) "To the extent possible, the 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." (§ 1202.4, subd. (f)(3).)
Restitution is intended to compensate victims for their actual loss and is not intended to provide a windfall. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992 (Thygesen); People v. Sharpe (2017) 10 Cal.App.5th 741, 746 (Sharpe) ["The goal of direct restitution is to restore the victim to 'the economic status quo.' "].) A court need not order restitution in the precise amount of a loss but "must use a rational method that could reasonably be said to make the victim whole." (Thygesen, at p. 992; People v. Ortiz (1997) 53 Cal.App.4th 791, 800 (Ortiz) [" '[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action.' "].)
The standard of proof at a restitution hearing is by a preponderance of the evidence. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542 (Gemelli).) Once the victim makes a prima facie showing of economic loss resulting from the defendants' crime, the burden shifts to the defendant to disprove such losses, which he or she may do by submitting evidence to prove the amount claimed exceeds the repair or replacement cost of the damaged or stolen property. (Id. at pp. 1542-1543.)
The trial court has broad discretion to set the amount of restitution, and we will not reverse absent an abuse of that discretion. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1173 (Chappelone).) We may reverse the trial court's order only if we determine that the method the court adopted was arbitrary, capricious, or irrational. (People v. Akins (2005) 128 Cal.App.4th 1376, 1389.) "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." (Thygesen, supra, 69 Cal.App.4th at p. 993.) An order resting on a demonstrable legal error constitutes such an abuse. (People v. Jennings (2005) 128 Cal.App.4th 42, 49.)
B. Part of the Restitution Awarded Constituted an Abuse of Discretion
Of the $281,828.80 the prosecution sought in restitution for the Trujillos, Bame does not dispute that he is obligated to pay the $29,018.80 the Trujillos paid to Kelseyville Lumber, the $1,125 they paid to Turner Insulation, and the $1,050 they paid for plumbing services to repair a cracked pipe. Bame also does not dispute his obligation to reimburse $10,062.86 of the $13,606.50 sought for attorney's fees. With respect to the $126,269.50 the Trujillos paid to LCC to complete their home, Bame does not dispute this was the amount the Trujillos paid to LCC nor does he argue it was improperly claimed as restitution but contends it must be offset by $45,779, the balance of remaining insurance proceeds held by Chase. That means Bame does not contest $80,271.55 of the Trujillos' payment to LCC. In total, Bame does not dispute $121,528.21 of the $281,341.30 the court the court ordered him to pay in restitution.
We thus consider whether the trial court abused its discretion in granting the Trujillos the following categories of disputed costs: (1) past payments to Bame totaling $110,759; (2) $45,997.95 Bame claims should have been offset based on the balance of insurance proceeds; and (3) attorney's fees in the amount of $3,543.64. We also address various miscellaneous costs raised by the parties at the restitution hearing.
1. Past Payments to Bame ($110,759)
Bame disputes the portion of the restitution order that requires him to pay back $110,759 received from the Trujillos related to two dozen items the Trujillos asserted had not been done properly or to completion, had not been delivered, or were overcharged. A sampling of these items and the associated amount included appliances ($8,000); insurance ($4,000); two wood stoves ($10,000); gutter downspouts ($9,000); "[f]inish [p]lumbing ($6,000); "[f]inish [e]lec [f]ixtures" ($7,000); electrical labor ($2,500); interior trim labor ($9,500), granite counters ($9,000), and more. Bame argues that requiring him to reimburse these past payments in addition to compensating the Trujillos for the money they paid to LCC to complete the house resulted in an impermissible windfall to the Trujillos.
We agree these past payments should not have been included in the restitution order as "[a] restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall." (Chappelone, supra, 183 Cal.App.4th at p. 1172.) Here, ordering Bame to both pay back these sums and pay to have the home construction completed in full resulted in an impermissible windfall.
a. Analysis
Sharpe, supra, 10 Cal.App.5th 741, is instructive. In Sharpe, the defendant rammed the victim's truck during a robbery. (Id. at p. 742.) The victim kept the truck, and the court awarded the victim restitution for both the decrease in fair market value of the truck resulting from the ramming and the salvage value of the truck. (Id. at pp. 745-746.) The appellate court reversed as this double recovery resulted in a windfall: "Before defendant's crimes, [the victim's] truck was worth $20,475.45. If [the victim] did not get to keep the truck, that amount would have been the appropriate measure for awarding the fair market value. However, because [the victim] kept the truck that was worth $3,250 after the crimes, [the] defendant's crimes only cost [the victim], as far as the value of the truck, $17,225.45-the difference between the value of the truck before and after the crimes. Awarding $3,250 over and above the reduction in value of the truck constituted a windfall for [the victim] ...." (Id. at p. 749.) The restitution order was therefore reduced to reflect only the decrease in the truck's market value and not the salvage value. (Id. at pp. 749-750.)
Like the victim in Sharpe who kept his damaged truck, the Trujillos kept their partially constructed home. The partially constructed home, which resulted from over a year of Bame's labor and for which the Trujillos had compensated Bame, still maintained value. Also like the victim in Sharpe, the Trujillos' economic loss was accounted for elsewhere, namely, by requiring Bame to reimburse them the full payment made to LCC to complete the house (which Bame does not contest but for an offset to be addressed separately) in addition to other out-of-pocket expenses. Since the restitution award already required Bame to pay the Trujillos the full amount of LCC's work to complete the house, i.e., correct Bame's defective work and finish the remaining work on the contract, ordering Bame to return funds paid to him for his initial work on the house - which LCC built upon and added to and from which the Trujillos had received some value - amounted to an impermissible double recovery for the Trujillos.
Turning to the specific items for which the Trujillos sought to claw back past payments, it is apparent that the claims consisted of work that was allegedly partially completed or incorrectly done, alleged overcharges, and items not delivered. However, the Trujillos obtained some value from these items, and in any event, LCC's work - the costs of which Bame was ordered to reimburse - corrected defective work and completed the job.
To the extent any of the Trujillos' claimed losses do not fall into these broad categories, it does not undermine our analysis or the modified award. Imprecision does not render an award defective, since "[t]here is no requirement the restitution order be limited to the exact amount of the loss." (Ortiz, supra, 53 Cal.App.4th at p. 800; People v. Giordano (2007) 42 Cal.4th 644, 666 (Giordano) [no abuse of discretion shown despite court's "methodological imprecision"].).
This does not apply to the Trujillos' claimed losses related to a wood stove installation. They sought reimbursement of $10,000 for two wood stoves and $3,200 for "[w]ood [s]tove [v]eneer." Bame's invoices do not show charges for two wood stoves and veneer amounting to $13,200, but they do include a charge for a pellet stove and "stone veneer" for $8,200. Bame testified that he billed the Trujillos for only one wood stove, and Mrs. Trujillo testified that LCC never installed a wood stove. Since $8,200 was charged for a wood stove and veneer and no wood stove or fireplace could be installed by LCC, we cannot conclude that the Trujillos ever derived any value from this $8,200 charge and it should thus be refunded.
Partially Completed or Incorrectly Done Items.
Several of the items for which the Trujillos sought restitution consisted of work Bame had not carried to completion but provided partial value towards the house. Mrs. Trujillo acknowledged, "A lot of things were started but never finished." This was the case for many of the items for which the Trujillos sought restitution. For instance, they asked for $11,000 for a sprinkler system. Mrs. Trujillo testified the sprinklers had been installed but "[n]ot all the way." Four of the items on the Trujillos list are presented as items in need of finishing: $6,000 to "Finish Plumbing"; $2,300 to "Finish Plumbing Labor"; $7,000 to "Finish Elec Fixtures"; and another $6,000 to "Finish Plumb. Fixtures." Mrs. Trujillo noted that "[t]here were some faucets and things, but nothing was hooked up." Bame placed into evidence pictures he took of the house around the time he stopped work; he also noted that he had provided all the bathroom sinks, the kitchen sinks, faucets, and toilets. Thus, the evidence established that Bame had at least begun work on these elements of the rebuild.
Overcharges. Other items for which the Trujillos sought restitution included past payments made to cover various fees such as $12,000 for contractor fees, $300 for truck rentals, and $300 for portable toilet rentals. These requests for overcharges are not supported by the record.
The overcharge items were never specifically addressed by the Trujillos at the hearing. Bame, however, noted the Trujillos claimed these were overcharges, and the word "Overcharge" is associated with at least one of the items on their list of claimed costs. Bame explained certain invoices had multiple charges for portable toilet and truck rentals because he did not bill monthly so had make-up invoicing after a month when he did not bill for these monthly charges, and this is reflected in the invoices submitted as evidence. With respect to the contractors' fees, the parties' contract stated $52,000 would be charged for such fees and the invoices show the total invoiced in contractors fees was $48,000.
In sum, the actual invoices do not suggest overcharges. The Trujillos proffered no evidence that portable toilets or trucks were never utilized for the project, they did not claim Bame never worked on the project (there is in fact no dispute that Bame worked on the rebuild for over a year), and they did not claim his contractor fees were not owed for the work he did complete.
Items Not Delivered. The Trujillos sought refunds for items they claimed they paid for but were never delivered. The restitution claims for items not delivered included $8,000 for appliances and $9,000 for granite counters. As to the appliances, none of the invoices lists an $8,000 charge for appliances and in any event LCC was paid to install new appliances as discussed below. As to the granite countertops, it appears they were not installed but instead quartz countertops were installed by LCC. Further, as discussed below in the section concerning "Miscellaneous" items, Bame did not object to reimbursing the Trujillos $5,000 for the granite countertop charge.
Payment to LCC to Correct and Complete Bame's Unfinished Work. Most significantly, the Trujillos paid LCC $126,269.50 to have the house completed. Indeed, the job description on LCC's proposal read: "Completion of partial constructed home." The objective of their agreement with LCC was to complete the house in the same way it should have been done by Bame. Mrs. Trujillo stated that they were eventually able to reach this point after saving up and losing time. On specific items for which the Trujillos claimed losses, such as the loss of $8,000 for appliances Bame never installed, Mr. Trujillo acknowledged that they were later able to pay LCC to install the appliances they had contracted with Bame to install. Correspondence from LCC also reflected they were able to address problems left by Bame's construction the Trujillos sought to be refunded. The Trujillos requested $9,000 for gutter downspouts and $2,500 for the waterproofing of a deck when LCC invoices show they were paid to waterproof a deck and fix downspouts. And LCC indicated its work reflected a "turn-key proposal" that would "complete house construction in-full and receive a final occupancy and final building permit sign off." In short, the Trujillos were able to bring the house to completion with LCC's work.
Since Bame was required to pay restitution for the entire amount the Trujillos paid to LCC to correct and complete his work (excluding the wood stove installation), it makes little sense to also have him pay back the fees he collected for his initial, albeit incomplete, work on the house. Just as the victim in Sharpe kept his truck and could not receive both restitution for the diminution in value of his truck as well as its salvage value, the Trujillos -who got most of their home from Bame - were not entitled to receive restitution for both the money paid to LCC to complete the home and also a refund of substantial past payments made to Bame for the very work LCC added to and was paid to repair. Requiring Bame to return fees for his past work associated with problems he was already paying to have fixed resulted in a windfall to the Trujillos. By awarding such a windfall, the trial court abused its discretion in including these costs in its restitution award.
b. Section 1202.4 Statutory Scheme
We note that this approach is in line with the section 1202.4 statutory scheme. Subdivision (f)(3) sets forth a non-exhaustive list of the types of economic losses for which victims shall be reimbursed. (§ 1202.4, subd. (f)(3)(A)-(L).) There is no specific provision for losses arising from an incomplete construction contract, but when property is stolen or damaged the required restitution is "[f]ull 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." (§ 1202.4, subd. (f)(3(A).)
The loss suffered by the Trujillos was akin to damaged property. Bame left the Trujillos with an unfinished house which required additional work to fix and complete. Indeed, some of the past payments sought were for actual repairs to the house caused by Bame's defective or incomplete work. Mrs. Trujillo testified that they first contracted with LCC to stop a leak in the house that was ruining the carpet and floor, and their payment to LCC to make this repair was part of the $126,269.50 Bame was ordered to pay in restitution. Since repair was possible, as evidenced by LCC's work to carry the project to completion, the proper restitution was the cost of repair. Requiring Bame to refund the Trujillos what they paid for his past work -and also ordering him to reimburse them the amount they paid to LCC to fix that work - amounted to a double recovery.
c. The Attorney General's Counterarguments
The Attorney General argues the Trujillos are due the full amount in court-ordered restitution because they ultimately did not get the house they wanted and which they contracted for, even after LCC completed it. We recognize there were several aspects of the rebuild that did not turn out as they had expected or wanted. Mrs. Trujillo stated they never got a wood stove though they were charged for it. She said there were ceiling fans that were never installed; a missing "awning off the back"; only one sink in the upstairs bathroom instead of two; and security screen doors that were not installed. Mr. Trujillo stated that they were not able to get the home to the point where it had previously been. He said it was "not what it was supposed to be at all." When asked to explain this further, he echoed that there was no fireplace. He also stated that "[t]he garage was supposed to go out underneath the deck." Presented with the realtor photos of the finished house, he agreed the house was nice but "not what [they] wanted."
The professional estimate provided to the license board noted the Trujillos' complaint about sink specifications and the missing awning and security screen doors. The report found there had been no specifications for sinks in the contract and thus "no basis to conclude that the sinks installed by Bame did not match the specifications." With respect to the awning and security screen doors, neither were indicated on the plans approved by the county and there was no basis to conclude Bame was required to provide either feature.
While we understand the Trujillos' frustrations at not getting exactly the house they wanted and having to adjust their house plans based on their available budget after Bame abruptly stopped work, these differences cannot justify the full restitution award. Other than the wood stove/fireplace, none of the items the Trujillos identified at the hearing as missing in the final house appear in their itemized list of claimed losses, nor were they assigned a value at the hearing. They provided no testimony or other evidence regarding any economic losses they suffered due to these differences. (Gemelli, supra, 161 Cal.App.4th at p. 1542 [noting victim's burden to make prima facie case of economic loss by a preponderance of evidence].) Accordingly, there is no basis for restitution on such grounds.
Accordingly, we shall deduct $102,559 ($110,759 minus the $8,200 wood stove and veneer reimbursement) from the restitution order. In light of our reduction of the past payments from the restitution award, we do not address Bame's arguments that the claimed costs were not supported by substantial evidence.
2. Offset ($45,779.95)
While Bame does not dispute restitution for the $126,269.50 the Trujillos paid LCC to finish their house, he claims LCC's costs should have been offset by $45,997.95, the balance of insurance proceeds held by Chase for the rebuild when he stopped work. We agree.
As noted, Bame contracted with the Trujillos to rebuild their home for $667,700. When Bame stopped work, the Trujillos had already paid him $621,702.05 through Chase, which held their insurance funds. In Bame's trial court restitution brief, he argued that the remaining balance Chase held should be subtracted from the amount awarded to the Trujillos. At the restitution hearing, the Trujillos confirmed they received the remaining, approximately $45,000 in insurance proceeds from Chase and used the money to pay the next contractor.
Because $45,779.95 of the costs to finish the house after Bame stopped work were paid from fire insurance proceeds, they do not reflect economic losses borne by the Trujillos due to Bame's misconduct. We reject the Attorney General's argument that Bame was not entitled to an offset because the house was not completed in the manner specified under contract for the reasons stated above. Accordingly, we shall apply a $45,997.95 offset to the restitution order.
3. Attorney's Fees ($3,543.64)
Section 1202.4, subdivision (f)(3)(H) provides that a victim's recoverable economic loss shall include "[a]ctual and reasonable attorney's fees and other costs of collection accrued by a private entity on behalf of the victim." (§ 1202.4, subd. (f)(3)(H).) While Bame does not dispute that he must pay most of the fees sought, he argues he has no obligation to pay the $3,543.64 incurred to defend against a lien placed on the Trujillo home by an unpaid subcontractor. He contends such attorney's fees were not recoverable because they were not incurred to recover economic damages due to Bame's criminal conduct and thus authorized under section 1202.4, subdivision (f)(3)(H) but rather arose out of the independent decision of a subcontractor to attach a purportedly improper lien to the Trujillos' home.
We decline to consider this argument. Even if Bame impliedly objected to these particular fees by disputing having to reimburse the Trujillos anything beyond $10,062.86 in fees, he did not raise any of the specific arguments against these particular fees in the trial court. We thus deem this argument forfeited. (See People v. Tafoya (2007) 42 Cal.4th 147, 163 (Tafoya); People v. Jenkins (2000) 22 Cal.4th 900, 949 (Jenkins) [appellant forfeited specific argument for challenging trial court's denial of severance motion because he did not raise the argument below].)
We decline to exercise our discretion to excuse the forfeiture. We also disagree with Bame's contention that the lack of objection was excusable because the basis for the excess fee request was "late-breaking" and gave him little opportunity to respond. Even if counsel learned of the basis for the full attorney's fees request at the restitution hearing held on September 21, 2022, the hearing was continued to November 4, 2022, for closing arguments. During the intervening six weeks and at the continued hearing date, Bame had sufficient opportunity to raise the issue but did not do so.
Accordingly, we shall not reduce this amount of attorney's fees ($3,543.64) from the restitution order.
4. Miscellaneous
Finally, the trial court did not abuse its discretion by including the following amounts in the restitution order based on representations made by the parties at the hearing.
Bame did not object to including in the order $5,000 for granite countertops that were billed and not installed. Since these were never installed in the final house, the court did not err in including this amount in the restitution award.
Nor did the court err in reducing the restitution order by $487.50 as Mrs. Trujillo twice stated at the hearing that $487.50 of the claimed attorney's fees should be deducted from the restitution award as a bankruptcy-related expense for which they could not charge Bame.
5. Conclusion
In sum, we conclude the trial court abused its discretion in requiring Bame to return past payments made to him while also covering the cost for LCC to finish the project as this constituted an improper windfall for the Trujillos. Accordingly, and consistent with the above analysis, we shall modify the restitution order and reduce it by $148,338.95 ($102,559 plus the $45,779.95 offset), which results in a $133,002.35 award. To this amount, we add $5,000, which results in a modified award of $138,002.35. Given the $487.50 was already deducted in the original order and we have rejected Bame's arguments for excluding certain attorney's fees, no further modification is needed.
One purpose of restitution is to make the victim of the crime whole, and the Trujillos undoubtedly deserved to be compensated for the significant losses they suffered because of Bame's conduct. Even though reduced, this modified restitution award still accomplishes the goal of restoring the Trujillos' to the economic status quo and making them whole as it encompasses all costs they paid after Bame stopped work to finish the rebuild of their house.
C. The Full Restitution Award Cannot Be Upheld Pursuant to Section 1203.1
In modifying the restitution award downward, we readily reject the Attorney General's argument that the trial court's full restitution award can be upheld under section 1203.1.
The scope of a court's authority as to victim restitution depends on whether the restitution is ordered pursuant to section 1202.4 or as a condition of probation pursuant to section 1203.1. (People v. Rahbari (2014) 232 Cal.App.4th 185, disapproved on another ground by People v. Bryant (2021) 11 Cal.5th 976, 986, fn. 5.) "[U]nder section 1203.1, 'California courts have long interpreted the trial courts' discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction.'" (People v. Anderson (2010) 50 Cal.4th 19, 27.) "[T]he scope of a trial court's discretion is broader when restitution is imposed as a condition of probation." (Giordano, supra, 42 Cal.4th at p. 663, fn.7.) A condition of probation will not be invalidated as unreasonable unless all three of the criteria in People v. Lent (1975) 15 Cal.3d 481, are satisfied. (Giordano, at p. 663, fn. 7 [" '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality."' "].)
The trial court's restitution order was made expressly under section 1202.4 and reflected a determination of the Trujillos' actual economic losses. The prosecution never raised section 1203.1 as a basis for restitution, having filed no written briefs and submitting at the hearing without argument. As such, we decline to consider the section 1203.1 argument for the first time on appeal and deem it forfeited. (See Tafoya, supra, 42 Cal.4th at p. 163; Jenkins, supra, 22 Cal.4th at p. 949.)
D. The Trial Court's Order Adequately Stated Its Method of Calculation
Lastly, Bame argues the trial court failed to provide an adequate statement of reasons for its calculation, which requires remand. We disagree.
In Giordano, supra, 42 Cal.4th 644, the Supreme Court stated: "To facilitate appellate review of the trial court's restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered." (Id. at p. 664.)
In its order, the trial court stated it had reviewed the testimony, files, exhibits, and arguments and found the Trujillos' economic loss due to Bame's conduct to be $281,828.80. The court further explained it "found the [Trujillos'] testimony and offer of proof sufficient and credible to accept [their] calculations of the economic losses. Testimony of [Bame] regarding work done and the amount he was willing to pay, did not convince this Court that the restitution amount should be reduced to the amount he suggested." After accounting for $487.50 Mrs. Trujillo retracted, the court on these grounds ordered restitution in the amount of $281,341.30.
The court's order was adequate. Based on the restitution award, the trial court necessarily found the Trujillos had proven each of their economic losses by a preponderance of the evidence and saw no basis for any deduction beyond the conceded $487.50. Under these circumstances, "the calculation method used" by the court - essentially awarding the Trujillos the entire sum requested - was sufficiently clear and explained the court's justification for the award. Neither Giordano or any of the other cases Bame cites requires an analysis of the evidence presented be included in the court's statement of the calculation method, or that some broader "statement of reasons" addressing each of Bame's objections be provided in restitution orders.
Disposition
The restitution order is modified by reducing the award to the Trujillos to $138,002.35. As modified, the order is affirmed.
WE CONCUR: Tucher, P.J., Fujisaki, J.