Opinion
A146413 A150004
06-22-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN FRANCIS FULLAM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-640768)
Appellant Steven Francis Fullam appealed after he was ordered to pay restitution to a woman from whom he stole jewelry and other valuables. While the appeal was pending, the trial court modified the restitution order three times, and Fullam appealed from the second of those modified orders. We asked the parties to brief the issue of how to proceed given this unique procedural posture. We exercise our discretion to consider all the evidence that was entered at the modification hearings, conclude that the victim-restitution order as finally modified is the restitution order under review, and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Fullam was charged in three separate cases with burglary counts, and in a fourth case with the use of a controlled substance. He pleaded no contest in March 2015 under a plea agreement to one count of burglary of an inhabited dwelling (Pen. Code, § 459) in one of the cases, in exchange for dismissal of the other three cases. Under the agreement, the trial court was authorized to consider the dismissed charges when ordering victim restitution. (People v. Harvey (1979) 25 Cal.3d 754, 758.) The court suspended imposition of judgment, placed Fullam on four years' probation, and ordered that he pay restitution. A victim in one of the dismissed cases (hereafter "the burglary victim") made a restitution claim for $99,963.97 in stolen jewelry and other items, and the trial court scheduled a restitution hearing.
All statutory references are to the Penal Code unless otherwise specified.
At the restitution hearing in September 2015, the burglary victim testified about the value of her jewelry and other stolen items. She divided her losses into two categories: (1) items worth $53,900 for which she did not seek reimbursement from her insurance company because she did not have receipts ("non-insurance items") and (2) items worth $46,063.97 for which she sought reimbursement from her insurance company ("insurance items"). In what we shall refer to as the original restitution order, the trial court ordered Fullam to pay the victim the full amount of $99,963.97 in restitution for these two categories. The order was a condition of Fullam's probation, subject to his ability to pay.
Fullam appealed in September 2015 from the original restitution order in No. A146413 (Fullam I). It took 15 months, until January 2017, for Fullam I to become fully briefed. During that time, the trial court modified the original restitution order on three occasions.
The First Modification in January 2016: Following a contested hearing, the trial court found Fullam to be in violation of his probation. Before the sentencing hearing, Fullam filed a request to modify the original restitution order based on the fact the burglary victim had identified 98 recovered items as hers. At the sentencing hearing on January 7, 2016, the prosecutor acknowledged that the victim had recovered a gold chain worth $300 and an iPod worth $112.58, for a total of $412.58. The court revoked Fullam's probation and sentenced him to four years in prison (he was later sentenced to a consecutive term of 16 months in his new case). The court also reduced the restitution owed by $412.58, making the new total $99,551.39 (the January 2016 modification). The court ordered that "restitution remains reserved," and scheduled another restitution hearing for the following month. Fullam did not appeal.
The Second Modification in October 2016: The next restitution hearing was continued multiple times and ultimately held on October 26, 2016. Before testimony was taken, the trial court raised the jurisdictional question of whether restitution could be modified while the original restitution order was on appeal, but the court did not rule on the issue, and the parties did not discuss the issue again.
A sheriff's deputy and the burglary victim testified about stolen items that were recovered from a pawn shop. As for the insurance items, Fullam's attorney noted that there was a discrepancy between how much the burglary victim had been reimbursed for a ring and how much she originally had paid for it. The victim was still in the courtroom, and the court questioned her about the discrepancy. The victim explained that although her husband had paid around $17,000 for the ring, it was appraised for $27,000, the amount she was reimbursed, because she had an insurance "rider" on it. The court asked the victim whether she could provide an appraisal showing the $27,000 value, and the victim stated she could. The court stated, "I'm going to withhold and give you a chance to get that appraisal to [the prosecutor]."
The court subtracted the amounts of various recovered items and entered a new restitution order of $98,489 (the October 2016 modification). The court scheduled another hearing to consider the value of the wedding ring the parties had discussed. Fullam appealed in December 2016 from this second modification in appeal No. A150004 (Fullam II). Less than a month after Fullam appealed, he filed a motion to consolidate Fullam I and Fullam II. Before this court ruled on the request, the trial court entered another modification.
The Third Modification in January 2017: The next restitution hearing was continued two times. At the start of the January 7, 2017 continued hearing, the trial court asked whether there was "some kind of proof of cost of the wedding ring." The prosecutor stated that there was "nothing in my file. I e-mailed both our restitution person and [a prosecutor previously assigned to the case] this morning to see if there had been any updates. I've not received any response. That's all I have." Fullam's attorney argued that because the court had awarded $27,000 in restitution for a ring that had only ever been valued at $17,421, Fullam's restitution order should be reduced by $9,579. The trial court granted the request, reduced the restitution award by $9,579, and set the new total award at $88,910 (the January 2017 modification). Fullam did not appeal from this order. But the superior court forwarded the clerk's and reporter's transcripts of the January 2017 proceedings to this court under California Rules of Court, rule 8.340, which provides that if the trial court amends an order in a case, the clerk must send a copy of the amended order to the reviewing court and the parties. (Id., subd. (a).)
Neither did the People nor the burglary victim. The Attorney General now argues that we should reverse the January 2017 modification because it was entered without compliance with Marsy's Law, which requires that a victim be accorded notice and an opportunity to be heard on any proposed change to restitution. (§ 1191.1 [victim has right to appear at sentencing proceeding]; Melissa J. v. Superior Court (1987) 190 Cal.App.3d 476, 478 [trial court erred in terminating restitution without first notifying victim of hearing].) But, contrary to respondent's suggestion, any alleged failure to provide notice to the burglary victim does not render the modified order a legally "unauthorized" sentence that the court can correct absent an appeal. (Melissa J., at p. 478 [victim may challenge award]; People v. Benton (1979) 100 Cal.App.3d 92, 102 [People may challenge unauthorized sentence on defendant's appeal].) In any event, we disagree with respondent that the record "establishes that the victim was neither noticed nor consulted about the hearing on the substantial downward revision of her restitution order." The burglary victim was active in restitution proceedings below, she was present during discussion of the need for further documentation on the value of her ring, and one of the minute orders continuing a further hearing stated that the victim had not yet received proof of the ring's value, suggesting the district attorney's office was in touch with the victim, as it had been throughout the proceedings.
About a week after the further restitution hearing, and after receiving a copy of the transcripts of the January 2017 proceedings, this court on January 13 ruled on the motion to consolidate Fullam I and Fullam II. The court declined to consolidate at that time because the appeals were in different procedural postures, and it was anticipated that it would take several months for Fullam II to become fully briefed.
Fullam I became fully briefed on January 19, 2017, when Fullam filed his reply brief. Fullam II became fully briefed less than two months later on March 13, when Fullam's attorney filed a brief under People v. Wende (1979) 25 Cal.3d 436 requesting an independent review of the record after he found no arguable issues.
Before expending further resources on the appeals, the court on March 21 asked Fullam "whether he wishe[d] to proceed with his appeals given [the] subsequent modifications in the trial court." Fullam notified the court that he intended to proceed with the appeals.
The court then consolidated Fullam I and Fullam II. The court also requested further briefing on whether the trial court had jurisdiction to modify the original restitution order when it was the subject of a pending appeal, whether Fullam I was moot in light of the modifications, and how this court should proceed under the circumstances.
II.
DISCUSSION
We begin with two preliminary points. First, even though the original restitution order was modified, Fullam I is not moot because the modifications did not grant Fullam all the relief he sought. Second, our independent review of the record in Fullam II under People v. Wende did not reveal any additional arguable issues. Thus, we address only the challenges raised in Fullam I.
A. The Trial Court Did Not Abuse Its Discretion in Entering the Original Restitution Order.
1. The Standards of Review.
Fullam argues in Fullam I that the trial court abused its discretion in issuing the original restitution order. (People v. Giordano (2007) 42 Cal.4th 644, 663 [restitution orders reviewed for abuse of discretion].) When there is a factual and rational basis for the trial court's award of victim restitution, a reviewing court will not find an abuse of discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) " 'In reviewing the sufficiency of the evidence [to support a factual finding], the " 'power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,' to support the trial court's findings." [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] "If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact.' " (Ibid.)
2. The People Established a Prima Facie Case for Restitution.
"Convicted criminals may be required to pay one or more of three types of restitution. First, absent 'compelling and extraordinary reasons,' all convicted defendants must pay a 'restitution fine,' the amount of which is 'set at the discretion of the court and commensurate with the seriousness of the offense.' (Pen. Code, § 1202.4, subd. (b).) . . . Second, when a defendant is convicted of a crime involving a victim who 'has suffered economic loss as a result of defendant's conduct' (Pen. Code, § 1202.4, subd. (f)), the court must require the defendant to pay full restitution directly to the victim or victims of the crime . . . . A 'defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.' (Id., subd. (f)(1).) Third, when a defendant is granted probation, a court may in its discretion require the defendant to pay restitution as a condition of probation. (Pen. Code, § 1203.1, subds. (b), (j).)" (People v. Giordano, supra, 42 Cal.4th at pp. 651-652, fn. omitted.) The first type of restitution order identified in Giordano is not at issue in these appeals. The second and third types are.
A restitution order shall fully reimburse the victim for his or her losses. (§ 1202.4, subd. (f)(3).) "The value of stolen or damaged property shall be the replacement cost of like property." (Id., subd. (f)(3)(A).) "At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once the victim [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim.' " (People v. Millard, supra, 175 Cal.App.4th at p. 26; see also People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 [crime victim's statements about value of stolen property constitutes prima facie evidence of value for purposes of restitution].) "[W]hile a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the . . . victim's economic loss." (People v. Giordano, supra, 42 Cal.4th at pp. 663-664.)
Fullam argues that the People failed to make a prima facie case for restitution with respect to the entire $53,900 awarded for the non-insurance items. He claims there was insufficient factual support for the award because the burglary victim "relied solely on her memory to claim restitution for [239] items, and she had estimated the purchase cost of the items, not the replacement cost." He directs the court to a portion of the first restitution hearing, where the burglary victim was asked about a comment she had written on the list of non-insurance items she provided to the court stating that "some things are more or some things are less." The victim responded, "I wanted to, you know, that it was kind of a guess figure for me. There might have been a, one bracelet was $450 but there might have been one bracelet that was only $150 and I put down $200 each because I didn't know how to put a value on each specific item. I know that over 40 years there were at least 100 pair[s] of earrings and I always just wore 14 karat gold, so they were all real, they weren't costume jewelry. And so I tried to just be fair about it. I didn't know exactly how much each pair cost." Fullam contends that this testimony showed that the restitution order "lacked corroboration," but we disagree. The burglary victim submitted a two-page list detailing the non-insurance items. She described some items in detail, including a "Blue Saphire [sic]" with "Lots of Diamonds." The victim listed one pendant as worth $5,000 and testified at the restitution hearing that it "was a heart pendant and it had diamonds all around the heart and . . . then it had a big diamond right in the middle of the heart." Her testimony demonstrated a detailed recollection of her entire jewelry collection, stating, for example, that she owned "a jewelry armoire that stood about four and a half foot tall and about 18 inches wide with eight drawers in it and then the sides opened and it was full of jewelry." The court found the victim to be credible and said her testimony sufficed to establish the value of her stolen items. Taken together, the evidence established a prima facie case for the value of the non-insurance items, even if the burglary victim did not remember the precise value of each item.
Fullam relies on a series of cases that take different positions on the level of proof necessary to establish victim restitution and contends that we should apply the cases where the evidentiary showings were found to be lacking. But his arguments are misplaced because, unlike in the cases he cites, here the victim testified and was subject to cross-examination, thus satisfying the evidentiary objections at issue in those cases. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543-1544 [trial court may accept property owner's detailed, handwritten statement in probation report about value of stolen property as prima facie evidence of loss]; People v. Harvest (2000) 84 Cal.App.4th 641, 653 [reversal of restitution order where no testimony or documents offered to support claim for murder victim's burial expenses]; In re S.S. (1995) 37 Cal.App.4th 543, 545, 548 [victim's statement itemizing losses and included in probation report adequate to support restitution order]; People v. Foster (1993) 14 Cal.App.4th 939, 943-944, 948 [victim's statement in probation report about value of rug sufficient to support restitution award issued as part of relaxed procedure to determine probation condition]; People v. Vournazos (1988) 198 Cal.App.3d 948, 952-953, 958 [probation officer's testimony about victim's written estimate of losses insufficient proof of replacement cost of stolen property].) Fullam also relies on a case where the appellant successfully challenged a restitution award based on a document that showed an ambulance charge was worth $582.32 but also that the victim did not actually owe money for the ride. (In re K.F. (2009) 173 Cal.App.4th 655, 664.) Here, by contrast, there is no dispute that the burglary victim had jewelry and other items taken from her. Fullam complains about the "complexity and magnitude" of the burglary victim's claims and argues that she "provided no meaningful description" for 42 chains, 30 bracelets, 24 of her 25 pendants, or for 100 pairs of earrings. Considering, however, that the burden of proof at a restitution hearing is preponderance of the evidence (People v. Gemelli, supra, 161 Cal.App.4th at p. 1542), the victim's testimony and documentation were sufficient to put Fullam on notice about the victim's claimed losses and to support the restitution orders.
3. The Restitution Order Was Not Improperly Based on Purchase Cost.
Fullam also argues that the burglary victim estimated the value of her missing items based on the purchase price instead of the replacement cost, which he contends was an improper basis for an award of restitution. (Cf. § 1202.4, subd. (f)(3)(A) [value of stolen property shall be replacement cost of property].) As for the non-insurance items, this argument lacks merit. The victim testified that she received some of the stolen jewelry decades earlier and that those items would cost "a lot more now than they were when they were purchased." (People v. Foster, supra, 14 Cal.App.4th at pp. 947-948 [replacement value of Persian rug might have exceeded purchase cost; owner's opinion of property's value sufficient to establish value].) And there is nothing to suggest as a general proposition that the replacement cost of jewelry would be markedly different from the purchase price, such that a new hearing is warranted. (People v. Prosser (2007) 157 Cal.App.4th 682, 690 [victim's testimony about value of jewelry sufficient to establish value, even absent documentation].) The cases upon which Fullam relies are inapposite, because they involved valuations of unique items. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1176-1177 [majority of stolen merchandise was damaged and "destined for donation"]; People v. Thygesen (1999) 69 Cal.App.4th 988, 994-996 [trial court erred in awarding victim 13 months' loss of rental value for a cement mixer instead of the replacement cost and costs for loss of use]; People v. Ortiz (1997) 53 Cal.App.4th 791, 799-800 [determining loss of sales as a result of pirated tapes].)
Although the trial court's statements are not evidence, the court observed that some of the burglary victim's 14-karat gold chains might have "tripled or quadrupled in value" since they were first purchased because of the increased value of gold during that period.
As for the insurance items, Fullam is correct that the burglary victim's insurance company calculated that some specific items (such as digital cameras, a pair of binoculars, and a leather jewelry box) had depreciated in value by a total of $1,164.60, yet the victim sought reimbursement for the full amount claimed. Fullam failed to object below that the original restitution award should not include the $1,164.60, and the argument is therefore forfeited. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 ["The appropriate amount of restitution is precisely the sort of factual determination that can and should be brought to the trial court's attention if the defendant believes the award is excessive."].)
We reject Fullam's related argument that the failure to object on this basis amounted to ineffective assistance of counsel. The list submitted to the burglary victim's insurance company also included several pieces of jewelry, and Fullam's trial attorney could easily have concluded that the replacement cost of those items exceeded the victim's original cost in an amount that would have outweighed any depreciation of the non-jewelry items. (People v. Foster, supra, 14 Cal.App.4th at pp. 947-948.) --------
4. No Reduction in Restitution for Allegedly Recovered Watch.
Fullam also argues that he was ordered to pay victim restitution for items that were later returned to the burglary victim. He claims that he was ordered to pay the burglary victim $1,299 for a Wittnauer watch that was later returned and that was worth less than the victim claimed in any event. We reject Fullam's arguments because the record is more ambiguous than he claims. As for whether the watch was returned to the victim, she was asked whether there were "other items potentially included in here [referring to a list of stolen items] that were returned to you" (italics added), and she responded, "Yes, ma'am. The Wit[t]nauer watch." It is thus possible that the watch had only "potentially" been returned, and the victim was never asked to elaborate. The watch is not included in a police report listing recovered items. As for whether the burglary victim testified that the watch was "not really worth anything," as Fullam claims, the testimony apparently actually refers to a different watch, which was one of the non-insurance items. The Wittnauer watch was listed by the burglary victim's insurance company as worth $1,200, which is more than substantial evidence of the watch's worth.
Had the trial court not modified the original restitution order, we would next turn to Fullam's argument in Fullam I that the original restitution award also improperly included (1) $300 for a recovered watch, (2) around $349 for a recovered pearl necklace, and (3) $9,579 for a wedding ring, as well as respondent's argument that that Fullam did not demonstrate that the trial court's original restitution award was an abuse of the court's broad discretion. But the restitution award already has been reduced by those amounts, so we instead turn to the questions posed in the request for supplemental briefing: how to proceed given the unique procedural posture of this case.
B. The Original Restitution Order Is Reduced to Reflect the January 2017 Modification.
On the one hand, victim-restitution orders generally are subject to modification by the trial court. (§§ 1202.4, subd. (f)(1) ["The court may modify the amount [of restitution], on its own motion or on the motion of the district attorney, the victim or victims, or the defendant."], 1202.46 [where victim's economic losses cannot be determined at the time of sentencing, court shall retain jurisdiction for purposes of imposing or modifying restitution until losses may be determined], 1203.3, subd. (b)(5) [court may modify amount of restitution at any time during term of probation].) On the other hand, in general "[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur." (People v. Perez (1979) 23 Cal.3d 545, 554.) "Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. [Citations.] Thus, action by the trial court while an appeal is pending is null and void. [Citations.] Indeed, '[s]o complete is this loss of jurisdiction effected by the appeal that even the consent of the parties has been held ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal and that an order based upon such consent would be a nullity.' " (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473.) The rule that an appeal divests the trial court of jurisdiction is subject to exceptions that do not explicitly apply here. (People v. Flores (2003) 30 Cal.4th 1059, 1064 [court may retain jurisdiction by statute]; People v. Turrin (2009) 176 Cal.App.4th 1200, 1205 [unauthorized sentence may be corrected any time]; People v. Alanis, at pp. 1473-1474 [trial court may vacate void (but not voidable) judgment and correct clerical errors]; People v. Lockridge (1993) 12 Cal.App.4th 1752, 1757-1758 [court retains jurisdiction to resentence under § 1170, subd. (d) pending appeal]; People v. Hall (1952) 115 Cal.App.2d 144, 154-155 [appeal from order denying motion to set aside judgment does not deprive trial court of all jurisdiction "but only over so much of it as is affected by the appeal"].)
In his supplemental opening brief, Fullam argues that the trial court lacked jurisdiction to modify the original restitution order and that this court has the authority to strike the modifications because they are null orders. His position is in direct conflict with his actions below, where he repeatedly asked the trial court to reduce his restitution after filing his appeal in Fullam I. Respondent, in contrast, argues that the trial court retained jurisdiction to modify the original restitution order.
Neither the parties nor this court have been able to find any published caselaw on whether a trial court retains jurisdiction to modify a victim-restitution order pending an appeal. Concluding that the trial court retained jurisdiction would run counter to the general and well-established rule that a trial court loses jurisdiction when a party appeals. But were the court to conclude that the pending appeal deprived the trial court of jurisdiction to modify the original restitution order, the three modifications would be null and void, and we would be in the odd position of reviewing whether the trial court abused its broad discretion in ordering restitution for three items, knowing that the trial court later eliminated or reduced the amount of restitution for those items. If we were to affirm based on the trial court's vast discretion and our deferential standard of review, the trial court would likely be required to proceed with duplicative and time-consuming proceedings, more than a year after the last modification was entered.
Under the circumstances presented here, we do not decide whether the trial court retained jurisdiction to modify the original restitution order. Instead, we exercise our discretion to consider the additional evidence that was presented at the subsequent restitution hearings in order to further the goal to dispose of a case "by a single appeal and without further proceedings in the trial court." (Code Civ. Proc., § 909 [reviewing court may make factual determinations in addition to those made by trial court]; see also Cal. Rules of Court, rule 8.252(c) [taking additional evidence on appeal].) We recognize that an appeal reviews the correctness of a judgment at the time of its rendition on the record before the trial court, and the power to take additional evidence on appeal is to be used sparingly. (In re Zeth S. (2003) 31 Cal.4th 396, 405; In re L.B. (2003) 110 Cal.App.4th 1420, 1423, fn. 1.) The evidence relied on to modify the original restitution order already is part of the appellate record, because it was either included in the Fullam II record or was forwarded to the court under California Rules of Court, rule 8.340(a). And that evidence was essentially undisputed below, and it has not been challenged on appeal. Thus, taking this evidence into account will not put this court in the position of weighing evidence, considering the credibility of witnesses, or resolving conflicts in the evidence or the reasonable inferences that may be drawn from the evidence. (Cf. Navarro v. Perron (2004) 122 Cal.App.4th 797, 803.)
Considering this additional evidence, we agree with Fullam in Fullam I that the original restitution order should not have included $300 for a recovered watch, around $349 for a recovered pearl necklace, or $9,579 for a wedding ring A reasonable calculation of the new victim-restitution order is $88,910, the amount set in the January 2017 modification. Because this modification already has been entered by the trial court, there is no need for further proceedings.
C. Fullam Has Not Established that He Received Ineffective Assistance of Counsel.
Finally, we reject Fullam's argument that his trial attorney provided ineffective assistance of counsel for failing to make various objections. Because we have rejected Fullam's objections to the original restitution order or concluded that there was a tactical reason for his attorney's failure to object (ante, fn. 4), there is no showing that the attorney's performance was deficient. This is especially true since, as we have discussed, Fullam's attorney successfully obtained reductions to the amount of restitution Fullam owed.
III.
DISPOSITION
The trial court's restitution order entered on September 28, 2015 (A146413) should be reduced to $88,910. No further action is required by the trial court, as it already has entered an order in that amount. The restitution order entered on October 26, 2016 (A150004) is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.