Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1211213, George C. Eskin, Judge
Lisa M. J. Spillman, 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, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Ana R. Duarte, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Amanda Leigh Charis appeals the judgment entered after she pled no contest to obtaining services by false pretenses (Pen. Code, § 532, subd. (a)), two counts of writing a check with insufficient funds (§ 476), and perjury under oath (§ 118, subd. (a)). In exchange for her plea, nine other counts were dismissed with a Harvey waiver for restitution. Charis was placed on five years probation, with the condition that she serve 365 days in county jail. She was ordered to pay a total of $78,028.61 in direct victim restitution pursuant to section 1202.4, subdivision (f), and was also ordered to pay a $37.50 fine pursuant to section 1202.5. She contends the trial court abused its discretion in ordering her to pay $9,920 of the $34,695 in direct restitution awarded to victim John Maxwell. She also asserts, and the People concede, that the section 1202.5 fine should be stricken. We shall order the judgment modified accordingly. Otherwise, we affirm.
All further undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754.
Charis was charged with various crimes relating to her tenancy at three different properties from December 2003 through December 2005. The perjury count to which she pled involved testimony she gave in an action brought against her by victim Sharon Granoff. The three remaining counts to which she pled related to conduct involving victim John Maxwell. Because the appeal is limited to Maxwell's award of restitution, only the facts relevant to that award, which are derived from the transcripts of the preliminary and restitution hearings, are set forth here.
On July 21, 2005, Charis met John Maxwell at an apartment he co-owned in Santa Barbara to inquire about renting the property. Charis returned on July 25 and filled out a rental application. Charis stated in the application that her gross annual income was $225,000, and she denied that she had ever been a party to an unlawful detainer action or asked to move out of a residence. She also listed one prior landlord. Maxwell accepted the application, and Charis executed a lease agreement providing that she would pay $2,250 in rent, payable on the first day of each month. Charis also paid a $1,000 cash deposit to be credited toward a $3,375 security deposit, and agreed to pay the balance in two equal payments at the beginning of September and October.
Charis and her son moved into the apartment on or about August 4, 2005. On August 10, Charis gave Maxwell a check for $2,250 for that month's rent. When Maxwell deposited the check on August 25, it "bounced." On September 9, Charis gave Maxwell a check for $1,765.15, which was supposed to account for that month's rent less the cost of a replacement dishwasher she had purchased for the apartment with his permission. Maxwell returned the check to Charis after she informed him that it would also "bounce." Charis subsequently gave Maxwell a cashier's check that covered the rent for August and September.
On September 27, Maxwell sent a letter to Charis reminding her that the September security deposit payment was past due. He also asked her to issue a cashier's check for the rent and security deposit payment that was due on October 1. Nevertheless, Charis gave Maxwell separate personal checks for the October rent and the security deposit payments, as well as a $25 check for bank fees. When Maxwell deposited the rent check, it "bounced." He did not attempt to cash the other checks after the bank notified him that they too would be returned for insufficient funds.
Prior to October 1, Maxwell discovered that Charis's former landlord, Sharon Granoff, had obtained an unlawful detainer judgment against her in March 2005. Granoff was not the landlord listed in Charis's rental application. Maxwell also learned that Charis had lived in approximately six different locations in 2005 alone. On October 3, 2005, Charis was served with a three-day notice to pay rent or quit. She did not comply. On October 7, Maxwell filed an unlawful detainer action. A week later, Charis filed for bankruptcy and listed Maxwell as a creditor. On October 23, Charis sent Maxwell a letter with copies of cashier's checks she had obtained on October 3 for that month's rent and security deposit payment. In that letter, Charis attempted to negotiate staying in the apartment through February or March and promised to make timely payments unless the property became uninhabitable. Maxwell refused the offer.
On November 22, the bankruptcy court granted Maxwell leave from the stay in order to proceed with the unlawful detainer action. The court's order expressly prohibited Maxwell from pursuing any claim for rent that was due before the bankruptcy petition was filed on October 14, other than by filing proof of the claim in the bankruptcy case. That debt (approximately $1,500 in rent for October) was subsequently discharged in the bankruptcy proceeding. On November 29, Charis filed a response to the unlawful detainer action in which she asserted that the action was precluded by her bankruptcy. Charis also claimed that Maxwell had breached his warranty of habitability. On December 20, Maxwell was granted a writ of execution and was awarded $12,100 for past due rent and attorney fees. Charis was evicted eight days later. Maxwell subsequently obtained a small claims judgment of $3,681 against Charis for damage to the apartment.
Sometime in 2006, Charis filed a civil action against Maxwell in her bankruptcy case. Five causes of action related to claims that Maxwell's unlawful detainer judgment had been obtained in violation of the bankruptcy court rules and procedures. The complaint also included claims for conversion and defamation based on allegations that Maxwell had assisted in compiling and distributing documents that Charis characterized as "a dossier of sorts, painting me as a very bad person." Maxwell incurred $9,920 in attorney fees defending against that action prior to December 5, 2006, when summary judgment was entered in his favor on the five causes of action relating to the unlawful detainer action. The order granting summary judgment provides that the conversion and defamation claims were dismissed on the ground they were "based on post petition actions possibly giving rise to liability based entirely upon state law."
DISCUSSION
I.
Restitution
Charis contends the trial court abused its discretion in awarding Maxwell $9,920 in direct victim restitution for the attorney fees he incurred in defending against the civil action she brought against him in her bankruptcy proceeding. She asserts that Maxwell is not entitled to recover those costs as restitution because they were not the result of her criminal conduct against him, as contemplated by subdivision (f) of section 1202.4, but rather were caused by his conduct in prosecuting the unlawful detainer action and participating in the preparation and dissemination of the "dossier" about her. We reject this contention.
The statute provides in pertinent part that "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." (§ 1202.4, subd. (f).)
First, the claim is waived because Charis did not object to the award on this ground below. In any event, it cannot be said that the court erred in awarding the challenged fees. "We review a restitution order for an abuse of discretion and will not disturb the trial court's determination unless it is arbitrary, capricious and exceeds the bounds of reason. [Citations.]" (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.) "'. . . ". . . Where there is a factual and rational basis for the amount of restitution set, no abuse of discretion will be found by the reviewing court." [Citation.]'" (People v. Balestra (1999) 76 Cal.App.4th 57, 63.)
Section 1202.4 expressly provides that restitution should be awarded "to fully reimburse the victim or victims for every determined economic loss," which includes "[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).) Restitution, which "has long been considered a valid condition of probation" (People v. Carbajal (1995) 10 Cal.4th 1114, 1121), is justified even if it regulates noncriminal conduct so long as it is "'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.]" (Ibid.)
The record supports the conclusion that Charis's conduct in bringing and prosecuting her civil action against Maxwell was reasonably related to the crimes of which she was convicted. Charis has never disputed that the attorney fees Maxwell incurred in prosecuting the unlawful detainer action against her were the proper subject of restitution because the action was reasonably related to her crime of obtaining services by false pretenses. It is also beyond dispute that the civil action she filed against Maxwell in bankruptcy court was directed at preventing him from enforcing that judgment. Moreover, Charis's collateral attack on that judgment was terminated in Maxwell's favor. While she asserts that the causes of action for defamation and conversion bore no relation to her crimes, she had the burden to show how to apportion the fees that were not recoverable. (People v. Fulton (2003) 109 Cal.App.4th 876, 887.) She made no such showing. Accordingly, the court did not abuse its discretion in awarding Maxwell all of the attorney fees he incurred in defending against the action.
II.
Section 1202.5
Charis contends that the trial court erred in imposing a $37.50 fine pursuant to section 1202.5. The People concede that the fine should not have been imposed because Charis was not convicted of any of the crimes enumerated in the statute. Accordingly, we shall order the fine stricken.
Section 1202.5, subdivision (a) provides in pertinent part that "[i]n any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed."
DISPOSITION
The $37.50 fine imposed pursuant to section 1202.5 is stricken. The trial court shall prepare a corrected abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.