Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF085258B
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted defendant Sarah Elizabeth Dutra of voluntary manslaughter and being an accessory after the fact to murder. (Pen. Code, §§ 192, 32/187, respectively.) In a prior unpublished opinion, we affirmed defendant’s convictions, but concluded that her 11-year upper-term sentence for manslaughter was imposed in violation of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (under Blakely, the federal constitutional right to jury trial requires that a jury, rather than a judge, find the facts necessary to support an aggravated sentence above the designated “statutory maximum”). Defendant’s case then became caught in the cross-currents of the post-Blakely decisions in People v. Black (2005) 35 Cal.4th 1238, Cunningham v. California (2007) 549 U.S. 270 (Cunningham), and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). This resulted in two more opinions from this court.
That brings us to the present appeal, which arose from a new sentencing hearing at which the trial court again imposed an upper term of 11 years for the manslaughter conviction (pursuant to Sandoval), stayed the sentence on the accessory conviction (pursuant to Penal Code section 654), and ordered victim restitution, as pertinent here, to Joyce Carter (Blair) and to Alfred Torres in the aggregate sum of $157,500.
Joyce Carter subsequently married; her married surname is Blair. For consistency, we will refer to her as Joyce Carter in this opinion.
On appeal, defendant contends (1) her Sandoval-based upper term sentence violates constitutional principles of ex post facto and due process; (2) the trial court abused its discretion in ordering victim restitution to Joyce Carter and Alfred Torres; and (3) the trial court failed to credit defendant with the actual time she spent in prison custody prior to the new sentencing hearing. The People concede the error as to contention No. 3, and we accept the concession. We also conclude that a remand is necessary regarding the restitution amount to award to Carter, and that the restitution amount awarded to Torres must be reduced by $600. We shall modify the judgment accordingly. As so modified, we affirm.
Background
As we stated in our first opinion in this matter:
Defendant, a young college student, fell under the sway of con artist Laren Jordan Sims. Sims had married attorney Larry McNabney while calling herself “Elisa Redelsperger,” and took control over his law practice. Defendant worked at the law office and became entangled with the couple. Sims used a slow poison to kill McNabney. On September 11, 2001, defendant helped Sims move McNabney in a wheelchair, knowing he had been poisoned, but did not call the police or try to save his life. Later she helped Sims hide the body and conceal the fact of McNabney’s death, by helping to operate the law office.
Discussion
1. Upper-Term Sentence
Defendant contends the trial court, in imposing the upper term of 11 years on the manslaughter conviction at the new sentencing proceeding, violated the ex post facto and due process clauses of the federal Constitution. The trial court erred, defendant argues, in applying California’s Determinate Sentencing Law as it was judicially reformed in Sandoval in a manner matching the Legislature’s statutory response to Cunningham--Senate Bill No. 40. The judicial reformation in Sandoval and the Legislature’s response to Cunningham, both of which occurred after defendant committed her offenses,identically afford the trial court “broad discretion” to select the lower, middle or upper term, rather than presume the middle term to be the “statutory maximum.” In this way, an upper term sentence does not require any additional factfinding by the judge that runs afoul of the jury trial principles laid down in Blakely and Cunningham. (Sandoval, supra, 41 Cal.4th at pp. 835-836, 843; see Id. at pp. 843-846, 857.)
Sandoval concluded “that the federal Constitution does not prohibit the application of [this] revised sentencing process . . . to defendants whose crimes were committed prior to the date [of Sandoval].” (Sandoval, supra, 41 Cal.4th at p. 857.) The ex post facto clause is not violated because defendants are not subjected to greater punishment; trial courts are simply given greater discretion to impose an upper term or a lower term. (Id. at pp. 853-855.) And due process is satisfied because defendants are put on notice by the criminal statute they have violated that they could receive an upper term for their offenses. (Id. at p. 857.)
Defendant herself “recognizes that this court . . . is bound to follow the California Supreme Court’s holding in Sandoval pending further guidance from the United States Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)”
Accordingly, the trial court properly imposed the upper term on the manslaughter conviction.
2. Victim Restitution
Defendant contends the trial court abused its discretion in ordering victim restitution to Joyce Carter and Alfred Torres. Carter and Torres were clients of McNabney’s who never received their respective settlement proceeds that had been sent to McNabney’s office around the time of his death. Defendant’s argument is two-fold: (1) Carter and Torres were not victims of the crimes for which defendant was convicted, as required to impose victim restitution, and (2) the trial court abused its discretion in setting the amount of restitution. We disagree with the first claim, but conclude that a remand is necessary regarding the restitution amount awarded to Carter and that the restitution amount awarded to Torres must be reduced by $600.
a. Imposition of restitution
We review the trial court’s restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.)
In line with the state constitutional provision that expresses an “unequivocal intention” to have convicted criminals provide restitution to their victims, the Legislature enacted Penal Code section 1202.4. (Cal. Const., art. I, § 28, subd. (b).) Section 1202.4 states that a “victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Pen. Code, § 1202.4, subd. (a)(1); see People v. Woods (2008) 161 Cal.App.4th 1045, 1049.) Courts have interpreted section 1202.4--in the context in which a prison sentence has been imposed, as here--“as limiting restitution awards to those losses arising out of the criminal activity that formed the basis of the conviction.” (Woods, supra, 161 Cal.App.4th at p. 1049; see also People v. Rubics (2006) 136 Cal.App.4th 452, 460 [“restitution must be for economic damages resulting from the crime of which (the defendant is) convicted, not merely those ‘reasonably related’ to the crime”].)
Thus, in order for the trial court’s restitution order to stand, the losses of Carter’s and Torres’s settlement proceeds must be losses “arising out of the criminal activity that formed the basis” of defendant’s conviction(s). (Woods, supra, 161 Cal.App.4th at p. 1049.) Defendant argues that Carter and Torres are not entitled to any restitution because they were not victims of the crimes for which she was convicted, as she was neither charged with nor convicted of taking the settlement proceeds of Carter and Torres. We disagree.
Defendant was charged with murder for financial gain and murder by poison and with being an accessory after the fact to the murder. She was found not guilty of the charged murder, but was convicted of manslaughter and the accessory charge.
Evidence at defendant’s trial, including testimony from Carter and Torres, showed that after McNabney’s death, checks made out to Carter and Torres in settlement of claims on which McNabney was representing them were forged and cashed by someone other than Carter and Torres. As this court noted in its first opinion, defendant helped Sims “conceal the fact of McNabney’s death, by helping to operate the law office.” We also stated in our first opinion that “[t]hose two clients [i.e., Carter and Torres] testified at trial that defendant and Sims ran the law practice and arranged settlements, but the clients never got the money.” And, as the trial court noted at the sentencing hearing at issue here, there was “no question that [defendant] strung the law firm’s victims along” and “[f]or at least three months after Larry McNabney’s death, the defendant engaged in a charade that he was still alive and participated in the looting of his law firm . . . .” In light of these facts, the trial court did not abuse its discretion in finding that the losses of Carter’s and Torres’s settlement proceeds arose out of criminal activity for which defendant was convicted: at the least, accessory after the fact to McNabney’s murder.
b. Amounts of restitution
Defendant also claims the trial court abused its discretion in setting the amounts of restitution to Carter and Torres. The court ordered $150,000 in restitution to Carter and $7,500 to Torres.
The trial court ordered these two restitution amounts payable to the Estate of Lawrence McNabney, in trust for Joyce Carter Blair and Alfred Torres.
“In determining the amount of restitution, all that is required is that the trial court ‘use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.’ The order must be affirmed if there is a factual and rational basis for the amount.” (People v. Akins (2005) 128 Cal.App.4th 1376, 1382 (Akins), quoting People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) “No abuse of discretion is shown simply because the order does not reflect the exact amount of the loss, nor must the order reflect the amount of damages recoverable in a civil action.” (Akins, supra, at p. 1382.) Nevertheless, “the purpose of the restitution statute is to make [the] victim whole, not to give a windfall.” (Thygesen, supra, 69 Cal.App.4th at p. 995; accord, People v. Fortune (2005) 129 Cal.App.4th 790, 794-795.) Finally, “direct victims of crime have a statutory right to restitution on the full amount of their losses without regard to the full or partial recoupment from other sources (except the state Restitution Fund).” (People v. Baker (2005) 126 Cal.App.4th 463, 468 (Baker).)
With these principles in mind, we address defendant’s specific points.
With respect to Carter, defendant claims that Carter testified that her settlement checks totaled $149,000 rather than the $150,000 ordered. Other evidence, however, showed an amount between these two figures, as well as an amount of $150,000. We find no abuse of discretion in this respect as the order need not reflect “the exact amount of the loss.” (Akins, supra, 128 Cal.App.4th at p. 1382.)
However, Carter also apparently estimated that she did receive from the McNabney law firm about $24,000. The People do not dispute this. This amount is far too large to fit within the standard that the order need not reflect “the exact amount of the loss,” and the amount did not come from “other sources” (i.e., third parties) but from the McNabney firm itself. (Baker, supra, 126 Cal.App.4th at p. 468.) The record before us, though, is not clear as to the actual economic loss Carter incurred. We will have to remand for a determination of this amount and a consequent modification of the Carter restitution order of $150,000.
As for Torres, he subsequently netted an apparently new settlement of approximately $1,200 through the efforts of a successor attorney. Torres has a right to the full amount of his loss without regard to this partial recoupment from another source. (Baker, supra, 126 Cal.App.4th at p. 468.)
However, Torres also apparently testified that he received from Sims (i.e., defendant’s partner in crime) an advance of $600 out of his $7,500 settlement. The People do not dispute this. This amount must be deducted from Torres’s restitution order of $7,500, making the order $6,900 in amount.
The trial court at the sentencing hearing at issue here (i.e., the most recent hearing) remarked that since the prior appeals in this matter did not implicate the restitution orders, the court would simply pronounce those orders again. However, no restitution order was actually ever signed or otherwise implemented by the original sentencing court.
3. Time Credits
All parties agree that the trial court at the most recent sentencing hearing erroneously failed to award defendant the 1,687 actual days that defendant spent in prison custody prior to this hearing. All parties also agree that defendant is entitled to a total credit of 2,145 days, comprised as follows: the 1,687 days of actual in-prison custody just noted; 399 days of actual custody credit for time spent incarcerated prior to the original sentencing hearing; and 59 days of presentence local conduct credit.
Disposition
The matter is remanded for the trial court to determine the restitution amount to award to Joyce Carter (Blair). The trial court is directed to reduce the restitution amount to Alfred Torres to $6,900. The trial court is also directed to amend the abstract of judgment to reflect these changes, and to show total custody credit for defendant of 2,145 days, as detailed in part 3 of this opinion, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: SCOTLAND, P. J., ROBIE, J.