Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, No. F426405, Hugh Mullin, Judge.
Jolene Larimore, under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Nadejda Georgi Kachlakeva appeals from the imposition of a $106,610.50 victim restitution order. (Pen. Code, § 1202.4, subd. (f)(1).) Appellant pleaded no contest to grand theft by false pretenses and forging a public seal. (§§ 487, subd. (a), 472.) The court suspended imposition of sentence and granted appellant probation. Appellant challenges the sufficiency of the evidence to support the victim restitution order. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
BACKGROUND
Sanford Friedlander owns a business that provides counseling for the San Luis Obispo County Behavioral Health Department. Friedlander's contract with the county dictates that employees who provide counseling services possess a professional license. In October 2005, appellant provided Friedlander with a copy of a marriage and family therapist license bearing her name and a California license number. Friedlander hired appellant to work as a therapist.
In April 2008, while preparing paperwork for his malpractice carrier, Friedlander discovered that appellant did not have a valid marriage and family therapist license. He fired appellant. Authorities later determined that on two occasions, she had copied and forged the license of Dale Lewis, with whom she had worked before she joined Friedlander's practice.
On January 23, 2009, the prosecution filed an information charging appellant with grand theft by false pretenses, the unauthorized use of personal information, and two counts of forging a public seal. (§§ 487, subd. (a), 530.5, subd. (a), 472.) On May 7, 2009, she pleaded no contest to grand theft by false pretenses and one count of forging a public seal. The court later dismissed the other charges.
In a July 22, 2009 pre-sentence report, the probation officer relayed Friedlander's statement that appellant had caused irreparable damage to clients, therapists and administrators, and to his reputation. Friedlander anticipated that he would continue to pay the price for her conduct and sought restitution based on the salary he had paid her, a total of $106,610.50. The report also indicated that "a restitution hearing is pending, " and that "[a]t this point, ... it appears the defendant is liable for the salary fraudulently obtained...."
On July 22, 2009, the court suspended the imposition of sentence and placed appellant on probation. Appellant signed the probation order on the same date, stating that she read and understood the terms of her probation. The listed terms included her payment of "restitution pursuant to PC 1202.4" and that she "[s]tipulate[d] to the amount of $106,610.50 in restitution to Sanford Friedlander."
During the July 22 probation and sentencing proceedings, appellant's counsel stated he was "not going to go into that [restitution] at this point, " but argued that Friedlander incurred no economic loss, and that appellant earned the payment she had received for the work she had done. The prosecutor and the court indicated that appellant was unjustly enriched by collecting salary from Friedlander. The court referred to the fact that Friedlander had purchased malpractice insurance to cover appellant's conduct, and the probability that the insurance would not protect him from claims relating to her unlicensed practice. Appellant did not present any evidence to dispute the amount of the restitution.
In discussing appellant's probation, the court stated that it was "going to order restitution of $106,610.50 subject to a restitution hearing to be requested by the defense. And we can hear that if that should happen." It then asked appellant whether she accepted probation on those terms and conditions. She responded, "Yes, sir." She did not request a restitution hearing.
DISCUSSION
Appellant contends that this court should reverse the $106,610.50 restitution order because the victim suffered no economic loss. We disagree.
California crime victims have a statutorily and constitutionally protected right to receive restitution directly from a defendant convicted of a crime that causes an economic loss. (§ 1202.4, subd. (a), Cal. Const., art. I, § 28.) California law requires the court to impose victim restitution for the victim's loss, in a dollar amount to reimburse the victim as determined by the court. (§ 1202.4, subd. (f); People v. Ortiz (1997) 53 Cal.App.4th 791, 799.)
In determining the amount of the loss, the court has broad discretion as to the kind of information it can consider as well as the source of the information. "[T]he 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. [Citations.] 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.]" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.) A defendant "has the right to a hearing before a judge to dispute the determination of the amount of restitution, " and the trial court "may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant." (§ 1202.4, subd. (f)(1).)
Here, appellant claims that Friedlander suffered no loss because she performed counseling services and earned the $106.610.50 that he paid her, and the county compensated him for her services. Friedlander told the probation officer that appellant had caused irreparable damage to clients, therapists and administrators, and to his reputation. He anticipated that he would continue to pay the price for her conduct and he sought restitution based on the $106,610.50 he paid her during her employment. In recommending that amount of restitution, the probation officer indicated that a restitution hearing was pending. The court ordered restitution of "$106.610.50 subject to a restitution hearing to be requested by the defense. And we can hear that if that should happen." (Italics added.) Appellant received repeated notice of her right to request a restitution hearing, but she failed to do so.
The record belies appellant's claim that she presented evidence to dispute the restitution award. In stating that Friedlander "received full reimbursement from the county for [her] services and... suffered no economic loss, " appellant relies on outdated preliminary hearing testimony. During the January 21, 2009 preliminary hearing, when asked w0hether he had lost any income as a result of appellant, Friedlander indicated "that's yet to come." The court asked if the county had tried to recover money it had paid for the services of an unlicensed employee. Friedlander explained that he did not yet know what would happen because he had just submitted an incident report to the county.
On July 22, 2009, just after stating its intent to order $106,610.50 in restitution, subject to a defense request for a hearing, the court asked appellant if she accepted probation on those terms and conditions. She responded, "Yes, sir." Appellant never requested a hearing to challenge the amount of restitution. By accepting the terms of probation, including payment of $106,610.50 in restitution, and failing to request a restitution hearing, appellant waived the right to challenge the amount of restitution on appeal. (See People v. Zito (1992) 8 Cal.App.4th 736, 742-743.)
DISPOSITION
The judgment and the restitution order are affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.