Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Ct. No. LA055374, Martin L. Herscovitz, Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
Alexis Burban appeals from an order of restitution following her no contest plea to residential burglary. (Pen. Code, § 459.) Pursuant to her negotiated plea, she was sentenced to prison for the low term of two years. She contends the attorney’s fees incurred to have her removed as co-trustee of a trust are not fees incurred for the collection of economic losses and, therefore, are not recoverable as victim restitution. For reasons stated in the opinion, we affirm the order.
The evidence at the preliminary hearing established that on September 19, 2006, Barbara Richter attended a mediation hearing with appellant, her sister, regarding the trust of their father. Richter and appellant were co-trustees and could not agree on the management of the trust. Also present at the hearing were Carrie Woodruff, a niece, and the parties’ attorneys. The beneficiaries of the trust were Richter, her brother James, appellant, and Woodruff.
Following the mediation hearing, when Richter returned to her home in Van Nuys, she discovered that a safe that had been imbedded in the floor of her closet had been removed. Additionally, her daughter’s room was in total disarray. The safe had contained stock certificates belonging to the trust, savings bonds in the name of Richter’s mother and father, jewelry, uncirculated coins, and other items kept there for safekeeping. Additional jewelry was missing from Richter’s daughter’s room. Richter had not given appellant or codefendant David Rosenberg permission to enter her residence.
Later that same day, appellant told Woodruff, “it was done.” When Woodruff asked what that meant, appellant stated that she had had Richter’s safe removed. Woodruff stated she wanted nothing to do with “it,” and appellant said she had someone named “Slick” and his partner do it.
Appellant subsequently pled no contest to a charge of residential burglary. At the restitution hearing, Richter testified her losses totaled $24,000. Included in this figure was approximately $7,000 in fees to her probate attorney, incurred as a consequence of the burglary. Because there were items from the trust that were stolen during the burglary and because appellant was responsible for the burglary, Richter sought to have appellant removed as co-trustee. Teresa Ballek, Richter’s daughter, estimated the value of her jewelry taken during the burglary at approximately $9,500.
Richter filed a written declaration claiming losses of $24,720, including $7,324 in attorney’s fees. To the extent appellant is challenging the amount of attorney’s fees, she did not raise this issue in the trial court and has not preserved it for appeal. (See People v. Fortune (2005) 129 Cal.App.4th 790, 793-794.)
At the restitution hearing, the court considered the declaration of Mark C. Brown, a partner in the firm of Reed & Brown LLP, attorneys for Richter, as trustee of the subject trust. Brown declared, in pertinent part, that since the death of Richter’s and appellant’s father, Frank Earl Mitchell, on July 9, 2005, there has been constant and ongoing difficulty in dealing with appellant as a co-trustee. “Based upon the allegations in the criminal proceeding, it appears that [appellant] orchestrated a burglary of [Richter’s] house . . . knowing [Richter] was otherwise engaged in the mediation, which resulted in the loss of a number of items belonging to the Trust and Trust Estate . . . . [¶] . . . As a Trustee, [Richter] is required to account for and otherwise protect the Trust assets. The theft of the Trust assets on September 19, 2006, has seriously and materially disrupted the Trust administration process. It has necessitated the efforts to replace those Trust assets, through the issuance of replacement stock certificates or bonds, and given what proved to be the criminal conduct of [appellant], has also necessitated efforts to remove her as a Co-Trustee given her potential risk to the Trust and Trust Estate. It would arguably be a breach of [Richter’s] duty as a Trustee to permit [appellant] to continue to act as a Trustee. [¶] . . . As a result of the loss of these Trust assets, the efforts to replace those assets, and the need to effect a removal, . . . [Richter] has incurred substantial legal expense in her capacity as a Co-Trustee.” Attached to the declaration was a detailed listing of the legal services provided by the law firm “in connection with the recovery or replacement of the Trust assets that were stolen, as well as the necessary efforts, directly resulting from [appellant’s] criminal activity, to remove her as a Co-Trustee. . . .”
Thereafter, the court ordered restitution to Richter in the amount of $23,117.24 and to Ballek in the amount of $9,500 plus $450 for a stolen camera. The court found the attorney’s fees were incurred as a direct result of appellant’s burglary.
DISCUSSION
Appellant contends the fees incurred in an attempt to have her removed as co-trustee were not fees incurred for the collection of economic losses and, therefore, were not recoverable as victim restitution.
Penal Code section 1202.4, subdivision (f) provides in pertinent part: “ . . . in 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 unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. . . . [¶] (3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and 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: [¶] (A) Full or partial payment for the value of stolen or damaged property. . . . [¶] (B) Medical expenses. [¶] (C) Mental health counseling expenses. [¶] (D) Wages or profits lost due to injury incurred by the victim . . . [¶] (E) Wages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution. . . . [¶] (F) Noneconomic losses, including, but not limited to, psychological harm, for felony violations of Section 288. [¶] (G) Interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. [¶] (H) Actual and reasonable attorney’s fees and other costs of collection accrued by a private entity on behalf of the victim. [¶] (I) Expenses incurred by an adult victim in relocating away from the defendant . . . . [¶] (J) Expenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks. [¶] (K) Expenses to retrofit a residence or vehicle, or both, to make the residence accessible to or the vehicle operational by the victim, if the victim is permanently disabled, whether the disability is partial or total, as a direct result of the crime.”
“We review the trial court’s restitution order for abuse of discretion. [Citations.] . . . [¶] ‘In examining the restitution statute, “[t]he intent of the voters is plain: every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss.” [Citation.] As a result, “the word ‘loss’ must be construed broadly and liberally to uphold the voters’ intent.” [Citation.] 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. Crisler (2008) 165 Cal.App.4th 1503, 1507-1508.)
“[T]he list of categories of compensable loss in subdivision (f) is nonexclusive: ‘the 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” the 11 enumerated categories [set forth in the statute].’ [Citation.] The only limitation the Legislature placed on victim restitution is that the loss must be an ‘economic loss incurred as the result of the defendant’s criminal conduct.’ [Citations.]” (People v. Crisler, supra, at p. 1508.)
In People v. Pinedo (1998) 60 Cal.App.4th 1403, the court held that a contingency fee paid to the victim’s attorney who obtained a civil settlement from the defendant’s insurance carrier was properly included in the restitution amount ordered. Upholding the restitution order, the court stated, “The test is not whether the victim’s legal fees arose directly from the criminal case, but whether they were a ‘determined economic loss incurred as a result of the defendant’s criminal conduct.’ [Citation.] Appellant’s drinking and driving directly caused the lost wages, medical bills and property damage covered by the settlement. The legal expense incurred by the victim to recover these damages from appellant’s insurance carrier was ‘proper, necessary, and a logical result of appellant’s criminal conduct.’ [Citation.]” (Id. at pp. 1405-1406.)
In People v. Lyon (1996) 49 Cal.App.4th 1521, the court concluded that legal expenses incurred by the victim to prevent the sale of a home in which the defendant had equity was an economic loss incurred as a result of the defendant’s criminal conduct and thus the proper subject of a restitution order. The victim’s attempt to preserve an asset belonging to the defendant which could cover a portion of the loss was proper, necessary, and a logical result of the defendant’s criminal conduct. The court, however, disallowed legal fees and costs incurred by the victim in employing a private attorney to oppose defense discovery in the criminal case, finding that although the expense may have been an economic loss, it was not one “that result[ed] from ‘defendant’s criminal conduct’ but rather from defendant’s defense of the criminal charges.” (Id. at p. 1526.)
In the present case, the victim’s counsel filed a declaration to the effect that as a trustee, Richter was required to protect the trust assets. As a result of appellant’s criminal conduct and the demonstrated risk she posed to the trust assets, Richter was obligated to seek her removal as a trustee. The legal expenses incurred to remove appellant were an economic loss and were “proper, necessary, and a logical result of appellant’s criminal conduct.” (People v. Pinedo, supra, 60 Cal.App.4th at pp. 1405-1406.) The trial court did not abuse its discretion in requiring appellant to pay these legal expenses as part of the restitution order.
DISPOSITION
The order is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.