Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC317591
RUSHING, P.J.
I. Statement of the Case
The Santa Clara County District Attorney charged defendants Emeka Obiora Ekwueme, Richard Anthony Meyer, and Benedine Ngozika Okafor with eight counts of grand theft; one count of embezzlement, and one count of conspiracy to commit grand theft and further alleged that the offenses involved excessive taking of more than $500,000. (Pen. Code, §§ 484-487, subd. (a), 368, subd. (d), 182, subd. (a)(1), & 186.11, subd. (a)(1).)
All further unspecified statutory references are to the Penal Code.
Prior to trial, all defendants reached negotiated settlements. Ekwueme pleaded no contest to one count of grand theft and two new charges of false personation (§529, subd. (3)), the remaining charges and the excessive taking allegation were dismissed, and he was placed on probation with the understanding that he would serve no more than 364 days in jail and on condition that he pay restitution to the victim. Meyer pleaded no contest to one count of grand theft, the remaining charges and the excessive taking allegation were dismissed, and he was placed on probation with the understanding that he would serve no more than six months in jail and on condition he pay restitution. Okafor pleaded no contest to one count of false personation, the remaining charges and the excessive taking allegation were dismissed, and she was placed on probation on condition she pay restitution.
All defendants filed timely notices of appeal. Ekwueme claims his attorney rendered ineffective assistance in failing to adequately advise him concerning the immigration consequences of his plea. Meyer claims the court erred in ordering him to pay restitution. Okafur filed a brief in accordance with People v. Wende (1979) 25 Cal.3d 436 that raises no issues.
Ekwueme obtained a certificate of probable cause from the trial court to challenge the validity of his plea.
We affirm the judgments against all three defendants.
II. Background
In 1999, the elderly victim, Marilyn Strohl, had a hip operation, and Okafor was assigned as her home healthcare worker. Okafor introduced Strohl to Ekwueme. Between 1999 and 2000, Ekwueme induced Strohl to refinance her house twice and then sell it. Meyer acted as the loan agent or real estate agent in these transactions. Thereafter, Ekwueme converted most of money from the refinancing and sale and the money in Strohl’s IRA account. In 2001, the Santa Clara County Public Guardian (Public Guardian) was appointed as conservator for Strohl and her estate. The conservator suspected financial wrongdoing by defendants, investigated, and then reported her findings to the district attorney. She also initiated a lawsuit against numerous defendants, including the three criminal defendants, to recover money that Strohl had lost. Strohl settled the lawsuit with numerous defendants, including Meyer. Thereafter, the three defendants entered their pleas in this case, the court dismissed the remaining charges, placed defendants on probation in accordance with the plea bargain, and imposed victim restitution as a condition of probation.
III. Ekwueme’s Appeal
Ekwueme contends that his attorney misadvised him about the immigration consequences of his plea. Thus, he claims that he was denied effective assistance of counsel, and his plea was not knowing, intelligent, and voluntary. Ekwueme asserts that counsel erroneously told him that a conviction for grand theft would not be grounds to deport him if the sentence was less than one year and assured him that the plea bargain had been structured to avoid mandatory deportation. He further asserts that after entering his plea, he learned that his grand theft conviction rendered him subject to mandatory deportation.
Defendant Ekwueme is a native of Nigeria.
The Guilty Plea
At a combined change of plea hearing for all three defendants, the court told Ekwueme that if he did not understand anything or had a question about anything, he could discuss it with counsel and further warned him that it would be difficult to withdraw his plea later. Counsel reported that they had discussed at length the immigration consequences of the plea, and Ekwueme said that he understood what he was doing, had had enough time to talk to counsel about his case, and was satisfied with his advice. Counsel confirmed that he was satisfied with their discussion.
The court then explained the rights Ekwueme would have to waive and the consequences of his plea. Among other things, the court advised him that “[i]f you are not a citizen of the United States, a plea of no contest will result in deportation, exclusion form admission to the U.S., and denial of naturalization. Do you understand? Mr. Ekwueme?” (Emphasis added.) Ekwueme said he did.
The court continued, “Now, as for all three of you [defendants], none of us knows what the immigration consequences will be. There is no way of knowing that, because it’s not handled out of this court. And we don’t know what immigration is going to do. Are you pleading no contest regardless of any immigration consequences that might occur? Mr. Ekwueme? (Emphasis added.) Counsel consulted with Ekwueme and then said, “For the record, Judge, the plea agreement that we have entered into provides for two counts of section 529 subsection (3) [false personation], which we understand . . . is not a crime of moral turpitude, and it’s not an aggravated felony. It is a wobbling felony. [¶] The third count of grand theft is a crime of moral turpitude; but if we understand from immigration guidelines, if the actual penalty or sentence is 364 days or less, that would not give them grounds to deport him.” Ekwueme concurred.
Counsel further explained that “part of the reason he’s entering into this plea is his belief that that is what the guidelines of the immigration are. However, I made it clear to him that I’m not an immigration lawyer. [¶] I’ve also made it clear to him I have no power over what the Department of Naturalization and Immigration does. And this is to advise the court and [Ekwueme] that he does have an action currently pending with the Department of Immigration and Naturalization, where they are seeking to deport him. We have seen to it as much as we can based on the guidelines we have been provided not to give them additional grounds to deport him, but we can’t make any guarantee that they would not take this case into consideration. It’s just that the felony plea that he’s entering into, we understand, would not give them grounds to deport him on their own. And that’s the best statement I can make to you.” Ekwueme said he understood that neither counsel nor the court could assure him with certainty that his plea would not in some way be used to deport him.
Counsel continued, “We only tell you what we have read, though I’m not a specialist in immigration law at all, and provide you with that information; but the ultimate choice is yours.” Again, Ekwueme said he understood and still desired to enter the plea.
Seeking clarification, the court asked whether avoiding deportation was a condition of the plea, and Ekwueme said it was not. The court then reiterated that if he was not a citizen, the plea would result in deportation. After consulting with Ekwueme, counsel read the advisement provided in section 1016.5: “ ‘If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion form admission to the United States, or denial of naturalization . . . .’ ” Counsel noted that although the statutory advisement says “may” not “will,” “as a matter of being safe, we can’t assure you, [Ekwueme], in any sense what the Department of Immigration Bureau will do in this matter.” Again Ekwueme said he understood.
The attorney for Okafor added, “The burden falls on defense counsel to in depth discuss with their client[s] the anticipated or likely consequence of this plea. And we have researched this issue based upon information provided by the Immigrant Legal Resource Center publication. And it would appear from those guideline that [Ekwueme’s counsel’s] statement is accurate.” Counsel added that the guidelines were always changing, there was already a deportation action pending against Ekwueme based on unrelated conduct, and there was no way to predict the outcome. However, structuring the plea to avoid deportation was an inducement for the plea.
The court then directly asked whether Ekwueme understood that “[p]leading no contest to these charges is grounds for deportation . . . .” (Emphasis added.) Ekwueme said he understood. The court again asked, “Are you entering this plea regardless of what the immigration consequences, which are unknown at this time, might be?” (Emphasis added.) Ekwueme again said he was and that he was pleading freely and voluntarily.
The Motion to Withdraw
Several months later, Ekwueme filed a motion to withdraw his plea. He asserted that after entering his plea, he “believed that [his] conviction would not have immigration consequences” but later learned that his plea rendered him subject to mandatory deportation. He further asserted that although the court had advised him that his plea “might” have immigration consequences, his attorney advised him that it would not have any consequences because he would not serve more than a year in jail. Lastly, he asserted that if he had known that his plea “could” have resulted in his deportation, he would not have entered it.
The trial court did not find Ekwueme’s declaration credible and denied the motion. The court noted that it had expressly advised Ekwueme that the plea would result in his deportation and that the plea was grounds for deportation; defense counsel advised him that the plea may result in deportation; Ekwueme understood that no one knew what immigration authorities would do; neither counsel nor the court could or did assure him that the authorities would not use the plea to deport him; Ekwueme unequivocally indicated that he was entering the plea even though it could result in deportation; and twice Ekwueme said he was entering his plea regardless of its immigration consequences.
Ineffective Assistance of Counsel
To obtain reversal due to ineffective assistance, a defendant must first show “that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney[.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 688.) Where the record on direct appeal “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 596.) Because the defendant bears this burden, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Second, a defendant’s must show that there is “a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Ekwueme argues that counsel’s performance fell below an objective standard of reasonableness, in that he assured Ekwueme that he had done enough research to believe that a conviction for grand theft with a sentence of less than one year would not be considered an aggravated felony triggering mandatory deportation. According to Ekwueme, the Immigration and Naturalization Service (INS) classifies grand theft as an “ ‘aggravated felony’ ” when the judgment does not state that the amount involved was less than $10,000. Thus, Ekwueme argues that counsel should have ensured that the judgment included language that the theft involved less than $10,000. We are not persuaded.
First, the record does not support Ekwueme’s assertion that counsel told him that his conviction for grand theft with a sentence less than one year would not trigger mandatory deportation. However Ekwueme may have understood counsel’s advice, the record reveals that counsel and counsel for Okafor discussed the immigration consequences of the plea with their clients. Counsel reviewed applicable federal immigration statutes and the immigration guidelines used by the immigration enforcement agency, consulted an immigration resource center publication, and advised Ekwueme that immigration guidelines are constantly evolving, which made it difficult to predict whether Ekwueme’s plea would result in deportation. This was especially so because Ekwueme was already facing deportation for unrelated reasons. Moreover, at the hearing, counsel repeatedly emphasized that his plea may result in deportation and, at most, counsel indicated only that the plea might not trigger deportation. At no time did Ekwueme state or indicate that this was new information or that he had been told or assured by counsel that his plea could and would not trigger deportation.
Next, we note that under federal law, an alien “convicted” of an “aggravated felony” is subject to deportation. (8 U.S.C. § 1227(a)(2)(A)(iii).) Counsel’s advice—i.e., that if the sentence for the grand theft conviction was less than one year, the conviction might not trigger deportation—was in accord with federal law, which enumerates “aggravated felonies,” and, in particular, includes any theft offense for which the term of imprisonment is “at least one year.” (8 U.S.C. § 1101 (a)(43)(F), fn. omitted.)
Ekwueme’s claim that counsel was ineffective in failing to ensure that the judgment specified a loss of less than $10,000 is based on 8 U.S.C., section 1101(a)(43)(M)(i), under which an “aggravated felony” is any offense that “involves fraud or deceit in which the loss to the victim exceeds $10,000.” As the Attorney General points out, however, deportation is based on the offense of which the defendant is convicted. (8 U.S.C. § 1227(a)(2)(A)(iii).) A conviction qualifies as an aggravated felony only where all elements of the aggravated felony are established. Thus, where the conviction is by plea, that determination is based exclusively on the facts to which a defendant actually and necessarily pleaded, as indicated by the charging document, written plea agreement, or plea colloquy transcript. (Shepard v. United States (2005) 544 U.S. 13, 26; Anaya-Ortiz v. Mukasey (9th Cir. 2009) 553 F.3d 1266, 1271; James v. Mukasey (2d Cir. 2008) 522 F.3d 250, 257; Martinez v. Mukasey (5th Cir. 2007) 508 F.3d 255, 258, fn. 12; Dulal-Whiteway v. U.S. Department of Homeland Security (2d Cir. 2007) 501 F.3d 116, 125 (Dulal-Whiteway).)
In support of defendant’s motion to withdraw, Martin Resendez Guajardo, defendant’s immigration attorney in the pending deportation proceedings, stated that defendant’s conviction for grand theft “is classified by the INS as an ‘aggravated felony’ because the judgment does not state that the amount involved was less than $10,000. See Immigration & Nationality Act, 8 United States Code section 1101(a)(43)(M).”
A loss exceeding $10,000 is an element of the aggravated felony set forth in 8 U.S.C., section 1101(a)(43)(M)(i). (Kawashima v. Mukasey (9th Cir. 2008) 530 F.3d 1111, 1117.) Where a defendant pleads to an offense and the statutory elements do not establish the over-$10,000-loss element, courts have nevertheless inferred that element from plea bargains, under which the defendant agreed to pay restitution over $10,000. (E.g., Martinez v. Mukasey, supra, 508 F.3d 255; Ferreira v. Ashcroft (9th Cir. 2004) 390 F.3d 1091; Khalagleh v. INS (10th Cir. 2002) 287 F.3d 978.) However, where the bargain does not include such an agreement and the defendant does not otherwise admit a loss in excess of $10,000, courts have not found post-plea restitution orders enough to establish the loss element. Moreover, it does not appear that the requisite element can be based on a post-plea order to pay restitution, where the court finds by only a preponderance of the evidence that the victim’s loss exceeded $10,000.
For example, in Dulal-Whiteway, supra, 501 F.3d 116, the defendant pleaded guilty to a charge of welfare fraud causing a loss over $1000. (Id. at pp. 133-134.) Thereafter, the trial court ordered the defendant to pay over $20,000 to the victim. (Id. at p. 119.) On appeal, the court concluded that the court’s restitution order did not establish the requisite loss element. The court explained, “The aggravated felony removal provision, [citation], ‘renders deportable an alien who has been “convicted” of an aggravated felony, not one who has “committed” an aggravated felony.’ [Citation.] Restitution orders, like other sentencing determinations, need not be based on facts of which a defendant was actually ‘convicted,’ i.e., those established beyond a reasonable doubt or to which the defendant admitted. Here, for example, Dulal was only ‘convicted’ of committing fraud causing loss of greater than $1000, not of the $20,824.09 indicated in the restitution order.” (Id at pp. 131-132.)
Noting that for purposes of a deportation proceeding, the elements of an aggravated felony must be found by clear and convincing evidence (see 8 U.S.C. § 1229a(c)(3)(A) [INS has burden to establish by clear and convincing evidence that alien is deportable]), the court further explained that its holding “also implements the statutory requirement that [immigration judges] determine removability by ‘clear, unequivocal and convincing evidence.’ [Citation.] For an [immigration judge] to rely upon sentencing facts established by the lower preponderance of the evidence standard would permit the government to order an alien removed in the absence of the clear, unequivocal and convincing evidence required by law.” (Dulal-Whiteway, supra, 501 F.3d at p. 132; see Shepard v. United States, supra, 544 U.S. at pp. 25-26 [to permit judicial factfinding beyond what is apparent in a prior plea might run afoul of Apprendi v. New Jersey (2000) 530 U.S. 466].) Accordingly, the court reversed a deportation order because the statutory elements of the offense, the plea, the terms of the plea bargain, the transcript of the hearing, and the restitution order based on facts found by a preponderance of the evidence did not establish the loss-element of an aggravated felony. (Dulal-Whiteway, supra, 501 F.3d at p. 134; see Obasohan v. U.S. Attorney General (11th Cir. 2007) 479 F.3d 785 [restitution order based on preponderance of the evidence could not establish monetary element]; Chung Ping Li v. Ashcroft (9th Cir. 2004) 389 F.3d 892 [where jury’s verdict did not establish monetary element, element could not be based on trial court’s sentencing findings]; Chang v. INS (9th Cir. 2002) 307 F.3d 1185 [restitution order exceeding $10,000 did not establish monetary element where plea agreement stated victim’s loss at less than $10,000].)
Although the original charges here included an allegation of taking in excess of $10,000, that allegation was dismissed, and Ekwueme was convicted of only grand theft of property over a value of $400, which does not establish the loss element of an aggravated theft felony under federal law. Moreover, the plea bargain did not include any allegation or information that the victim’s loss exceeded $10,000, and at the change of plea hearing, Ekwueme did not admit to such a loss or agree to pay restitution exceeding $10,000.
We review counsel’s advice in light of Dulal-Whiteway and the cases cited above, especially the Ninth Circuit cases consistent with Dulal-Whiteway, and the fact that the plea bargain required dismissal of the excessive taking allegation and did not encompass an admission or agreement concerning any amount of restitution, let alone restitution in excess of $10,000. Under the circumstances, we do not find counsel’s failure to advise Ekwueme that his conviction could trigger deportation if the loss exceeded $10,000 or to ensure that the judgment specified a loss of less than $10,000 to be unreasonable as a matter of law. This is especially so because at the time of the plea, restitution had not been imposed, and the amount of restitution based on Strohl’s economic loss, if any, had not even been determined. Moreover, defendants later opposed restitution at the subsequent hearing.
The declaration of Ekwueme’s immigration attorney (see fn. 4, ante) does not persuade us that counsel failed to render effective assistance. Neither Ekwueme nor his immigration attorney’s declaration cite any authority indicating that a conviction for grand theft under the instant circumstances has been deemed an aggravated felony. Nor do they cite any grand-theft case where language in the judgment concerning the amount of the victim’s loss avoided an aggravated-felony determination and deportation or where the absence of such language triggered deportation.
Rather, under the circumstances, counsel properly focused on preventing the conviction from being considered an aggravated felony because of the length of the sentence. In our view, it was well within an objective standard of reasonableness for counsel to advise Ekwueme that a theft conviction with a sentence less than one year might not trigger mandatory deportation while also explaining that it may trigger deportation and that it was impossible to predict with any certainty whether it would.
Not only does Ekwueme fail to show that counsel’s conduct was unreasonable, but also he cannot demonstrate prejudice. Indeed, in denying Ekwueme’s motion for new trial, the trial court implicitly rejected his assertion that he would not have entered the plea if he had been aware that he “could” be deported as a result of his conviction. Generally, we are bound by the trial court’s determination of credibility in ruling on such motions. (People v. Nesler (1997) 16 Cal.4th 561, 582.) Moreover, we agree that the record refutes Ekwueme’s assertion of prejudice.
At the change of plea hearing, summarized above, Ekwueme was repeatedly and unequivocally informed that his conviction could result in deportation. He was also told that neither counsel nor the court could guarantee that his plea would not be considered additional grounds for deportation in the proceeding pending against him. On the contrary, the court expressly advised him both that his plea would result in deportation and would be grounds for deportation; and counsel read the statutory advisement that Ekwueme’s conviction may result in deportation. The record further reveals that Ekwueme acknowledged all of this, exhibited no uncertainty and asked no questions, and expressly indicated that he was entering his plea “regardless of what the immigration consequences, which are unknown at this time, might be[.]” (Emphasis added.)
For this reason and also because counsel’s advice was reasonable, we reject defendant’s alternative claim that his plea was not knowing, intelligent, or voluntary.
Furthermore, Ekwueme cannot show prejudice from the fact that his conviction could have been considered grounds for deportation. The record establishes that before he entered his plea, he was subject to deportation proceedings based on unrelated conduct. Ekwueme fails to demonstrate, and the record does not establish, that he would not be have become subject to mandatory deportation had he not entered his plea or had the judgment expressly specified that the amount of Strohl’s loss was under $10,000.
Indeed, we note that Ekwueme was ordered deported in 1999, and that order has repeatedly been reaffirmed without regard to the grand theft conviction. (See Ekwueme v. Chertoff (E.D. Cal. 2007) 2007 WL 3232249; Ekwueme v. Chertoff (E.D. Cal. 2008) 2008 WL 154609.)
In sum, therefore, we reject Ekwueme’s claim of ineffective assistance of counsel.
IV. Meyer’s Appeal
Meyer contends that the court erred in ordering him to pay restitution. He argues that the settlement agreement in Strohl’s civil suit against him and others precluded the imposition of restitution as a condition of probation. He further argues that there were no grounds for an award because Strohl suffered no economic loss.
The Settlement Agreement
In November 2003, the public conservator filed a complaint for injunctive relief, cancellation of instruments, quiet title, fraud, illegal contract, breach of fiduciary duty, elder abuse, unfair business practices, and negligence against defendants and the mortgage companies, title companies, real estate firms through and with which they acted in taking control of Strohl’s money and property. In December 2005, the conservator and Public Guardian, acting on Strohl’s behalf, entered into a settlement agreement “of all claims” Strohl may have against Meyer and certain other named defendants. The agreement acknowledged the pending criminal action against defendants Ekwueme, Okafor, and Meyer. The agreement was intended to “settle, fully and finally, ending all disputes between them . . . .” Under it, Meyer and the other signatories agreed to pay $80,000 “as a resolution of all disputes between these parties. This amount reflects a return of some of the equity that Strohl held in [her house].” In exchange, Strohl agreed to dismiss with prejudice “all claims and causes of action pending against Defendants.” The agreement provided that it was to be construed and governed by California law.
In determining whether the settlement and release precluded restitution as a condition of probation in the criminal action, we find guidance in People v. Bernal (2002) 101 Cal.App.4th 155 (Bernal).
In Bernal, the defendant pleaded guilty to driving under the influence and causing great bodily injury. The trial court declined to order restitution to the victim because the defendant’s insurance company had paid the victim for her losses, and she had signed a waiver and release of all claims, and the waiver and release specifically listed the defendant himself as a condition of probation. (Bernal, supra, 101 Cal.App.4th at pp. 158-161.)
On appeal, the court held that the victim’s settlement and release did not abrogate the defendant’s restitution obligation. (Bernal, supra, 101 Cal.App.4th at pp. 160-161, 164.) The court noted that under both the state constitution and section 1202.4, the victims of crimes had a right to restitution, and the court was required to order those defendants convicted of crimes to pay restitution for losses suffered by victims regardless of the indemnification or subrogation rights of third parties. (Id. at p. 161, and fn. 4; see Cal. Const., art. I, § 28, subd. (b); § 1202.4, subds. (a)(1) & (f).)
When Bernal was decided, article I, section 28, subdivision (b) of the California Constitution provided, in pertinent part, “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” (Adopted by Initiative (Proposition 8) at June 8, 1982, Primary Election.)
The court further noted that “[a] restitution order has objectives beyond simply indemnifying the victim. It also seeks to rehabilitate the defendant and deter defendant and others. [Citation.] ‘Among other things, California’s restitution law ensures that amends are made to society for a breach of the law, serves a rehabilitative purpose, and acts as a deterrent to future criminality. [Citations.] Restitution “is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.” [Citations.]’ [Citation.]” (Bernal, supra, 101 Cal.App.4th at pp. 161-162, quoting People v. Moser (1996) 50 Cal.App.4th 130, 135-136.)
The court reasoned that “a release by a victim cannot waive the People’s right to have a defendant pay restitution ordered as part of his sentence . . . .” (Bernal, supra, 101 Cal.App.4th at p. 160.) “While a settlement agreement with, and release of, a defendant’s insurance company may reflect a victim’s willingness to accept the amount paid in full satisfaction for all civil liability, it does not reflect the willingness of the People to accept that sum in satisfaction of the defendant’s rehabilitative and deterrent debt to society. A restitution order pursuant to a defendant’s plea is an agreement between the defendant and the state. [Citation.] The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence.” (Bernal, supra, 101 Cal.App.4th at p. 162.)
The court also explained that a restitution order “need not mirror what a victim might obtain in a civil action. ‘There 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 . . . .’ [Citation.] Since the categories of loss recoverable by restitution and the dollar amounts ordered are not identical to the defendant’s civil liability, there is no reason that a release of civil liability should release a restitution obligation, just as a satisfied restitution obligation does not bar a civil action for further damages. [Citation.]” (Bernal, supra, 101 Cal.App.4th at pp. 162-163, fn. omitted.) Furthermore, “even the statutory goal of fully reimbursing the victim’s losses might be undermined if a civil settlement with a defendant’s insurance carrier barred further restitution. A victim might rationally choose to accept an insurance settlement for substantially less than his or her losses rather than risk the uncertain, or even unlikely, possibility that the defendant will pay the entire restitution amount. If a settlement release automatically terminated a defendant’s restitution obligation, the victim would lose all possibility of ever being made whole.” (Id. at p. 163.)
The court found support for its analysis in People v. Clifton (1985) 172 Cal.App.3d 1165 (Clifton). There, the victim of defendant’s offense settled with an insurance carrier for partial payment of losses, damages, and medical expenses. On appeal, the court found the settlement irrelevant concerning whether the trial court had power to order restitution. The court explained that “[j]ust as a restitution order pursuant to the criminal law is not a substitute for a civil action to recover damages [citation], a partial civil settlement is not a substitute for restitution in a criminal proceeding. Aside from compensating an individual for injuries suffered, restitution may also serve the salutary purposes of deterring future criminality and impressing upon a criminal offender that he must accept responsibility for his crime. [Citations.]” (Id. at p. 1168.)
We find Bernal persuasive and applicable and conclude that the settlement here did not bar restitution.
Meyer claims that Bernal is inapplicable. First, he notes that in Bernal the victim settled with the defendant’s insurance company; but here, Strohl settled directly with him. He further argues that under the settlement agreement, both Strohl and the state explicitly waived restitution in the criminal case. Thus, the court was bound by the Public Guardian’s waiver and could not impose restitution. We reject this analysis.
First, we note that the settlement in Bernal included the defendant himself. Moreover, that Strohl settled directly with Meyer, rather than an insurance company, is a difference without a legal distinction. The person or entity with whom a criminal victim settles is irrelevant because, as Bernal explains, a victim has no authority to extinguish a criminal defendant’s obligation to the state to pay restitution as a condition of probation or waive the state’s right to order restitution in order to achieve the goals of restitution and probation.
Second, Meyer’s argument that the state itself waived restitution in the criminal case presumes that the state was a party to the settlement agreement. Not so. The conservator filed the underlying civil lawsuit on behalf of Strohl, Strohl was the only named plaintiff, and the claims asserted were personal to her. On the other hand, the state was not a plaintiff, the conservator did not simultaneously act in the capacity of district attorney or Attorney General or purport to do so, and she did not assert the state’s rights or seek relief. The subsequent settlement agreement is solely between Strohl and a certain defendants named in the civil suit and resolves only legally enforceable claims between those parties. Thus, even though both the Public Guardian and the conservator signed the agreement, they did so only as Strohl’s representative and thus waived only Strohl’s legal claims against the parties to the agreement. (See In re Tommy A. (2005) 131 Cal.App.4th 1580, 1588-1592 [express release of defendant by victim as part of settlement with insurer did not preclude restitution in criminal case].)
It is true that the agreement acknowledges the pending criminal case against Meyer. However, neither Strohl nor the conservator specifically waived the right of the state, a nonparty, to order restitution as a condition of probation in the related criminal. Nor could they. Indeed, we note that in negotiating a plea bargain, even a prosecutor, acting on behalf of the People, lacks authority to bargain away or restrict the court’s authority to order full restitution to the victim. (People v. Brown (2007) 147 Cal.App.4th 1213, 1225-1226.) Thus, although the Public Guardian signed the settlement and although Strohl released Meyer under the settlement agreement, that settlement does not represent the state’s promise not to seek and order restitution.
We further note that the agreement specifies that it is governed by California law. Bernal was decided in 2002, three years before the agreement was signed; and, notwithstanding Meyer’s effort to distinguish Bernal, Bernal clearly applied and put him on notice that despite the settlement with and release by Strohl, the court had a constitutional and statutory duty to impose restitution, and he would have an obligation to pay.
The record indicates that during the settlement negotiations, Meyer sought to preclude restitution in addition to the settlement. However, the attorney for the Public Guardian rejected proposed language to that effect. This too put Meyer on notice that he could still face restitution in the criminal case.
Finally, we note that under the agreement, Strohl resolved her claims against not only Meyer but also his employer Ronald Faye and Faye Financial, WMC Loans, and Westwood Associates, none of whom was charged in the criminal case. Collectively, the signatories agreed to pay $80,000. In our view, it would be inappropriate to shield Meyer from restitution because the non-criminal defendants were willing to settle their potential civil liability and Strohl was willing to accept their settlement where the settlement was for far less than the amount of Strohl’s economic loss, which was determined to be $341,831, and it is not clear what contribution, if any, Meyer made to the settlement amount.
No Economic Loss
Section 1202.4, subdivision (f) provides: “[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 . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (Italics added.) Section 1202.4, subdivision (f)(3) directs that the restitution ordered “shall be of a dollar amount that is sufficient to fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendant's criminal conduct . . . .” (Italics added.)
“ ‘[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.’ [Citation.] Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner’s statement made in the probation report about the value of stolen or damaged property. [Citation.] 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. [Citation.] The defendant has the burden of rebutting the victim’s statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543; People v. Keichler (2005) 129 Cal.App.4th 1039, 1045, 1048; People v. Foster (1993) 14 Cal.App.4th 939, 946-947, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245; People v. Fulton (2003) 109 Cal.App.4th 876, 886.)
Moreover, the scope of a trial court’s discretion is broader where, as here, the defendant is released on probation on condition he or she pay restitution rather than where the defendant is sentenced to prison. (People v. Giordano (2007) 42 Cal.4th 644, 663, fn. 7; People v. Rubics (2006) 136 Cal.App.4th 452, 459-460.) In granting probation, a court may impose such reasonable conditions, including a requirement of restitution, which “are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer . . . .” (§ 1203.1, subd. (j).) And an order of restitution is valid as a probation condition so long as it “can be reasonably related to the offense underlying the conviction and can serve the purposes of rehabilitating the offender and deterring future criminality.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1119.)
“A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered.” (People v. Gemelli, supra, 161 Cal.App.4th at p. 1542.)
At the restitution hearing, the parties agreed that the victim’s house, which she lost as a result of the transactions engineered and facilitated by the three defendants, was valued at $581,333. It is also undisputed that around $675,450 was paid directly to Strohl: approximately $494,000 in proceeds from refinancing her house twice and then selling it; and $180,181 from settlements in her civil action.
Meyer argues that because Strohl realized a net gain of over $94,000—i.e., $675,450 (monies received) minus and $581,333 (loss of house)—she suffered no economic loss, and, therefore, the court should not have ordered restitution.
We note, however, that in seeking restitution, the prosecutor sought the amount established by the investigation conducted by Strohl’s conservator. The conservator reported that although money from the refinancing and sale of her house was initially paid to Strohl, that money was converted by defendants. Indeed, the conservator initially fixed the total economic loss at $650,280 based on a higher fair market value of her house. At the restitution hearing, defendants presented no evidence to rebut the amount of Strohl’s economic loss or Strohl’s claim that most of the money from the refinancing and sale was stolen.
Rather, at that hearing, the prosecutor reduced the amount of Strohl’s loss by stipulating to a lower fair market value for the house. The court accepted the prosecutor’s claim that Strohl’s economic loss included most of the money from the refinancing and sale. And the court determined Strohl’s loss and the amount of restitution to be $341,831. The court calculated that Strohl lost the value of her house: $581,333. From that the court deducted (1) the amount from the refinancing and sale that Strohl used to make purchases and pay her own consumer debt and taxes—$59,321; and (2) the money Strohl received in settling her civil action—$181,181.
For defendants Ekwueme and Okafor, the court added $51,762, which comprised $12,450 in litigation expenses in obtaining a settlement, $77,603 in money they took from Strohl’s IRA account, minus $39,312.12 that she received from Charles Schwab as settlement reimbursement.
Under the circumstances, the record reveals, and we find, a rational and factual basis for the amount of restitution. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1542.) We acknowledge that the conspiracy charges were dismissed, and Meyer may only have received commissions from the transactions and not any of the other money taken from Strohl’s personal accounts. However, he pleaded no contest to grand theft committed by him and Ekwueme. His plea established knowledge of the theft; and he stipulated that there was a factual basis for the plea outlined in the offense reports and preliminary hearing, which detailed the fraudulent scheme by all three defendants in which Meyer arranged and facilitated the transactions that converted the equity in Strohl’s home into cash that was then stolen. Given Meyer’s knowledge of and role in causing the loss of Strohl’s home, and given the court’s broad discretion in imposing restitution as a condition of probation, we conclude that the court acted well within its discretion in finding that full restitution from Meyer was reasonably related to the probationary goals of rehabilitation and reformation. Accordingly, we find no abuse of discretion. (People v. Carbajal, supra, 10 Cal.4th at p. 1119.)
V. Okafor’s Appeal
Appointed appellate counsel for Okafor filed an opening brief, in which he states the case and facts, finds no arguable issues to raise, but identifies a few issues to assist this court’s independent review. We notified defendant of her right to submit written argument in her own behalf within 30 days. In a supplemental brief, she claims that (1) Strohl’s videotaped statements violated her Sixth Amendment right to confrontation; Evidence Code section 1380, which creates a hearsay exception for the videotaped statements of elderly victims, is unconstitutional; (3) Strohl’s statements were not admissible under a hearsay exception for spontaneous statements; (4) the prosecutor committed acts of misconduct; (5) defense counsel failed to render effective assistance of counsel; and (6) there was insufficient evidence to support her conviction.
In accordance with People v. Wende, supra, 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, we have reviewed the entire record and conclude that there are no arguable issues on appeal. As to those suggested by counsel, they are either foreclosed by defendant’s failure to obtain a certificate of probable cause, the lack of a record sufficient to support or resolve the claim, the transcripts of the proceedings, or the rejection of similar claims raised by the other defendants.
In accordance with People v. Kelly (2006) 40 Cal.4th 106, we further reject the various claims raised by Okafor in her supplemental brief. (Id. at p. 113.)
Okafor’s claims that Strohl’s videotaped statement violated her right to confrontation and was inadmissible under hearsay various hearsay exceptions are unavailing because (1) she failed to object below; (2) she failed to obtain a certificate of probable cause; and (3) she waived her constitutional right of confrontation and any evidentiary objections when she pleaded guilty.
Okafor’s claims of prosecutorial misconduct and ineffective assistance of counsel are foreclosed because (1) she failed to obtain a certificate of probable cause; (2) she failed to object to the alleged misconduct; (3) she failed support her claim with citations to the record; and (4) the record is not sufficient to support or resolve these claims.
Finally, Okafor’s claim that there is insufficient evidence to support her conviction is foreclosed by (1) her failure to obtain a certificate of probable cause and (2) her plea and admission that there was a factual basis for it.
In short, our review of the entire record satisfies us that Okafor’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at p. 441.)
VI. Disposition
The judgments against all three defendants are affirmed.
WE CONCUR: PREMO, J. ELIA, J.
Article I, section 28, subdivision (b) of the California Constitution was amended by Initiative Measure (Prop. 9, § 4.1, approved Nov. 4, 2008, eff. Nov. 5, 2008) and now provides, in relevant part, “In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights: [¶] . . . [¶] (13) To restitution. [¶] (A) It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] (B) Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.”
When Bernal was decided, section 1202.4 mandated that a crime victim receive “full restitution” (former § 1202.4, subd. (f)) “directly from” the defendant (former § 1202.4, subd. (a)(1)) without regard to “the indemnification or subrogation rights of any third party” (former § 1202.4, subd. (f)(2)). (See Stats. 1998, ch. 587, § 6.5.)
Although the statute has been amended a few times since then, that statutory language remains the same. (See Stats. 2008, ch. 468 § 1.)