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People v. Gjurashaj

California Court of Appeals, Fourth District, Third Division
Apr 21, 2009
No. G040642 (Cal. Ct. App. Apr. 21, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of San Bernardino County No. FSB041299, Ronald M. Christianson, Judge.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

ARONSON, J.

Defendant Rock Gjurashaj pleaded guilty to grand theft (Pen. Code, § 487, subd. (a); all statutory references are to the Penal Code unless noted). He argues the trial court erred in calculating the amount of victim restitution defendant owed to the State Compensation Insurance Fund. For the reasons expressed below, we modify the restitution order.

I

Factual and Procedural Background

Defendant intentionally failed to pay workers’ compensation insurance premiums to the State Compensation Insurance Fund (the Fund) between January 1998 and April 2003. A criminal complaint charged him with grand theft and insurance fraud (Ins. Code, § 11880, subd. (a)). He pleaded guilty to theft and the trial court sentenced him to two years in prison in April 2006. Following a contested restitution hearing in February and March 2008, the court ordered defendant to pay $45,886.78 in restitution to the Fund.

II

Discussion

The court calculated the restitution amount by ascertaining payroll for each tax year and using a formula arrived at by stipulation of the parties. The court totaled checks written on defendant’s business and personal account that had been culled from his records by insurance fraud investigators, and then subtracted checks made to cash, written to defendant or his family members, loan repayments, materials or services from nonemployees, personal expenses, insufficient funds checks, and “any other questionable checks.” The court indicated the checks it included in the calculation by placing a black dot or a bullet next to each check entry on a spreadsheet.

Defendant contends the restitution order should be reduced by $83.99 because the court’s payroll calculation is overstated by $700. This corresponds to a check written to defendant’s wife in that amount.

The Attorney General does not dispute defendant’s claim the court inadvertently included the check to defendant’s wife. He merely responds a restitution order is reviewed for abuse of discretion, a court may use any rational method reasonably calculated to make the victim whole (People v. Fortune (2005) 129 Cal.App.4th 790, 794), restitution need not be limited to exactly provable losses (People v. Balestra (1999) 76 Cal.App.4th 57, 64) and defendant’s “argument should be rejected out of hand because an insignificant mistake, which is the most [defendant] alleges, does not constitute an abuse of discretion entitling [defendant] to relief. [Citations.]”

Defendant persuasively replies there is no dispute concerning the court’s methodology, the court intended to exclude checks to family members, the court made an inadvertent error, and the mistake “is not insignificant to [defendant], who is responsible for paying the restitution amount.” We agree. While the amount at stake is relatively inconsequential, correction of the error requires no additional expense and does no harm to the cause of justice. We modify the order to reduce the restitution amount to $45,802.79.

III

Disposition

The court’s March 28, 2008, restitution order is modified (§ 1260) to reflect restitution in the amount of $45,802.79. As modified, the order is affirmed.

WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.


Summaries of

People v. Gjurashaj

California Court of Appeals, Fourth District, Third Division
Apr 21, 2009
No. G040642 (Cal. Ct. App. Apr. 21, 2009)
Case details for

People v. Gjurashaj

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROCK GJURASHAJ, Defendant and…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Apr 21, 2009

Citations

No. G040642 (Cal. Ct. App. Apr. 21, 2009)