Opinion
H043376
08-21-2017
THE PEOPLE, Plaintiff and Respondent, v. NASSIM LEBNAN MAJEDAAD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1492599)
I. INTRODUCTION
Defendant Nassim Lebnan Majedaad pleaded no contest to grand theft (Pen. Code, §§ 484, 487, subd. (a)) and money laundering (§ 186.10, subd. (a)). The trial court placed defendant on probation for three years with various terms and conditions. After a contested restitution hearing, the court ordered defendant to pay restitution totaling $67,400.33 to seven financial institutions.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the trial court abused its discretion by awarding the full amount of restitution requested. Specifically, defendant argues (1) there was not substantial evidence that one of the financial institutions, Chase Bank, suffered a loss, and (2) there was a dispute about whether defendant had made offsetting payments to some of the financial institutions and the court refused to examine available records to resolve the issue. Defendant also contends that his federal constitutional right to due process was violated.
For reasons that we will explain, we will affirm the restitution order.
II. FACTUAL AND PROCEDURAL BACKGROUND
As defendant was convicted by plea, the following facts are taken from the preliminary examination. An investigator who worked for the district attorney's office, and who was assigned to a task force to investigate identity theft crimes and technology crimes, was contacted by Wells Fargo about possible fraud by a Wells Fargo account holder. The information discovered by the investigator primarily reflected that defendant made purchases using credit cards from different financial institutions, that he had those purchases refunded to a Wells Fargo account with an ATM debit card, and that he reported that the credit cards were lost or stolen and that he had not made the purchases. Defendant then attempted to withdraw a large sum from the Wells Fargo account. The evidence included a Wells Fargo account statement for "Nassim Aad," showing transactions from July 10, 2014, through September 2, 2014. During the investigation, it was determined that defendant had used the last name "Aad" or "Majed" at many of the financial institutions.
For example, an investigator from Chase Bank, Tim O'Malley, reported to the investigator from the district attorney's office that a credit card belonging to "Nassim Aad" was used to make a purchase of $4,556.63 at Nordstrom on July 19, 2014. Defendant contacted Chase Bank to report that his credit card was lost or stolen, that he did not make the Nordstrom purchase, and that it was a fraudulent transaction. Chase Bank took the loss on the transaction. However, a few minutes after the Nordstrom purchase had been made on the Chase credit card, the purchase was returned and the refund went to defendant's Wells Fargo account.
Similarly, a senior investigator with Capital One reported a loss of $22,694.14 for several transactions that were reported as fraudulent by the credit card holder of an account in the name of "Nassim Aad." Evidence concerning each of those transactions was presented at the preliminary examination. Those purchases had been returned, however, with the refunds going to defendant's Wells Fargo account.
In a similar incident, a vice president with Bank of America, Barbara Riblet, reported that defendant had stated that several transactions on his credit card between July 31 and August 1, 2014 were fraudulent. Evidence concerning each of the transactions, which totaled $15,356.64, was presented at the preliminary examination. Bank of America took the loss on the transactions. Those purchases had been returned, however, with the refunds for those purchases going to other accounts belonging to defendant, including his Wells Fargo account.
An investigator with HSBC, Brian Scott, similarly reported that defendant made a $6,000 purchase with a credit card on August 6, 2014, and that defendant claimed that his wallet was lost or stolen and that the purchase was fraudulent. The purchase was returned, however, with the refund going to defendant's Wells Fargo account.
A special agent with American Express, Peter Green, reported that a $4,000 transaction was made on August 6, 2014, and that defendant had claimed it was a fraudulent transaction. The purchase had been returned, however, with the refund going to defendant's Wells Fargo account.
An investigator with Discover Bank, Terry Gearhart, reported a loss of $175.97 after defendant claimed that his credit card was lost or stolen and that a purchase in that amount was not made by him. The investigator with the district attorney's office contacted the business where the purchase was made. The customer who made the purchase had used the name "Nassim Majed" and had purchased parts or tires for a 2013 Nissan Versa, which was a vehicle associated with defendant.
The investigation into defendant's financial transactions also revealed the following incident. An investigator from U.S. Bank, Kimberly Schrutt, reported that a check made out to "Nassim Majed" in the amount of $14,983.06 was deposited at an ATM for a U.S. Bank checking account that belonged to "Nassim Aad." Two days later, defendant withdrew $15,250, which was the full amount in the bank account. The bank contacted defendant about the discrepancy between the name on the check and the name on the checking account. The bank sent the original check back to defendant and told him to replace the money in the account. Defendant never did. The check had been written by a law firm and the issuing bank was First Trust Bank. Upon learning that something was wrong with the check, the law firm cancelled the check. However, in addition to the check being deposited at U.S. Bank, which had returned the check, the check was deposited again at another financial institution. Subsequently, a deposit of $14,983.07, which was one penny more than the amount of the check, was made into defendant's Wells Fargo account. Schrutt reported that U.S. Bank suffered a loss due to the check. The final loss on the U.S. Bank account was only $11,939.53, because the bank was able to recover some of the money from the account.
Defendant repeatedly attempted to withdraw $62,112.52 from his Wells Fargo account, which was the full amount in the account. The bank told him that the money was not available and that he needed to place an order for that amount of cash. The bank was also concerned that there was fraud on the account based on the "massive amount of refunds with no corresponding purchases." A warrant was obtained for defendant's arrest, and defendant was told to come to Wells Fargo bank where his money would be ready. On September 8, 2014, defendant was arrested in the bank parking lot after arriving in a Nissan Versa.
A. The Information and Defendant's Pleas
In October 2014, defendant was charged by information with six counts of grand theft (§§ 484, 487, subd. (a); counts 1 - 4 & 6 - 7), one count of attempted grand theft (§§ 664, 484, 487, subd. (a); count 5), five counts of second degree burglary (§§ 459, 460, subd. (b); counts 8 - 12), four counts of money laundering (§ 186.10, subd. (a); counts 13 - 16) and one count of misdemeanor petty theft (§§ 484, 488; count 17). The information also alleged that the money laundering involved more than $50,000 (§ 186.10, subd. (c)), and that the value of the property taken exceeded $65,000 (§ 12022.6, subd. (a)(1)).
In September 2015, a grand theft count (count 1) and a money laundering count (count 15) were amended on motion of the prosecution to include additional factual allegations. As amended, the grand theft count alleged that defendant took property from the following seven financial institutions: Capital One, Bank of America, U.S. Bank, American Express, HSBC, Chase Bank, and Discover. The amended money laundering count alleged that the offense involved $6,837.88. Defendant pleaded no contest to the amended counts 1 and 15, with the understanding that he would be placed on probation, serve a jail sentence of 364 days, and waive certain custody credits. The remaining counts and allegations were submitted for dismissal at the time of sentencing.
B. The Probation Department's Memorandum
According to a waived referral memorandum dated November 20, 2015, the probation officer spoke with the seven victimized financial institutions between November 11 and 16, 2015. The probation officer's memorandum indicated that the financial institutions requested restitution for losses as follows:
1) Capital One Bank, through Mr. Kelsey, a senior investigator for the western region, stated that the company suffered a loss of $22,694.14;
2) Bank of America, through Ms. Riblet, a vice president, stated that the company suffered a loss of $15,356.64;
3) U.S. Bank, through Ms. Schrutt, a senior investigator, stated that the company suffered a loss of $11,939.53;
4) American Express, through Mr. Grimm, a special agent, stated that the company suffered a loss of $6,677.42;
5) HSBC North America, through Mr. Scott, a senior investigator, stated that the company suffered a loss of $6,000; and
6) Discover Financial Services, through Mr. Gearhart, a field investigator, stated that the company suffered a loss of $175.97.
The probation officer recommended that restitution be awarded to these six financial institutions as requested. Mr. O'Malley, a regional investigator for Chase Bank, told the probation officer on November 11, 2015, that the company had not suffered a loss and would not be requesting restitution.
C. The Sentencing Hearing
The sentencing hearing was held on December 4, 2015. The prosecution requested restitution of $4,556.63 to Chase Bank, in addition to the restitution that was requested by the other financial institutions in the waived referral memorandum. Defendant requested a restitution hearing.
The trial court placed defendant on probation for three years with various terms and conditions, including that he serve 364 days in jail. The court made a general order of restitution and set the matter for a restitution hearing. The remaining counts and allegations were dismissed.
D. The Restitution Hearing
The restitution hearing was held on January 29, 2016. The prosecution stated that the total restitution sought for the grand theft count was $67,400.33, divided amongst the victims as follows:
| 1) | Capital One Bank | $22,694.14 |
| 2) | Bank of America | $15,356.64 |
| 3) | U.S. Bank | $11,939.53 |
| 4) | American Express | $6,677.42 |
| 5) | HSBC North America | $6,000 |
| 6) | Chase Bank | $4,556.63 |
| 7) | Discover Financial Services | $175.97 |
The prosecution explained that the money laundering count included money that was stolen, and that it was incorporated into the total restitution request of $67,400.33.
Defendant objected to restitution for Chase Bank. He argued that there was no request for restitution by Chase Bank in the probation officer's waived referral memorandum, and that there was not sufficient documentation for the court to find that Chase Bank suffered a loss.
Regarding the loss to Chase Bank, the prosecution contended that defendant had used his Chase credit card to purchase $4,556.63 at Nordstrom on July 19. He subsequently returned the items to Nordstrom, but he had Nordstrom credit his Wells Fargo account instead of Chase Bank. According to the prosecution, defendant told Chase Bank that the credit card charge was fraud, and Chase Bank consequently credited his account for that amount.
The prosecution introduced into evidence at the restitution hearing an exhibit that included the following:
(1) records from Nordstrom reflecting defendant's purchase on a Visa card of $4,556.63 in clothing on July 19, 2014, and a return of those same items with Nordstrom crediting the amount to a different account (not the Visa account);
(2) records from Chase Bank regarding the Visa purchase of $4,556.63 at Nordstrom, a document referring to the Visa card being "Lost" with a date of July 24, 2014, and a document entitled "Fraud Transactions" which refers to the Nordstrom purchase; and
(3) a Wells Fargo document showing deposits and withdrawals from defendant's Wells Fargo account, which was in the name of "Nassim Lebnan Aad," between July 11 and September 2, 2014, including a credit of $4,556.63 to the Wells Fargo account from Nordstrom on July 21, 2014.
The prosecution contended that the exhibit showed (1) the purchase at Nordstrom and the subsequent return of those items, (2) the credit to defendant's Wells Fargo debit account, and (3) the loss suffered by Chase Bank and the fraud by defendant. The prosecution explained that the documents in the exhibit "were all subpoenaed records" and that the trial court had "the original subpoenaed records in its file."
Defendant "object[ed] to the American Express amount." He "fe[lt] that amount [was] higher than what he recall[ed] the loss being." Defendant also contended that he had made payments of totaling $14,342 "to the credit cards from his debit card" and that the restitution should be offset by that amount. Defendant "believe[d] that his bank account statements which were . . . in the possession of the district attorney would show that those payments were made."
The prosecution responded that "the banks individually requested these amounts" for the loss that each suffered, and that "these are the most recent numbers by the bank." The prosecution further stated, "I do have my box of documents with regard to every single bank including American Express. If the Court feels that it needs more documentation, I have it." The court responded in the negative and stated, "[N]ow the burden has shifted. The burden is on the Defense to prove what they stated."
Defendant contended that, because he had made offsetting payments, he only owed the credit card companies the following amounts:
| 1) | Capital One | $21,395.91 |
| 2) | U.S. Bank | $11,939 |
| 3) | Bank of America | $7,585.10 |
| 4) | HSBC | $5,927.21 |
| 5) | American Express | $3,669.08 |
After the parties submitted the matter, the trial court ordered restitution to the seven financial institutions in the amounts requested by the prosecution for a total of $67,400.33. The court also ordered that Wells Fargo release all funds in defendant's account, totaling $62,112.52, to the Santa Clara County Department of Revenue, and that the payment include defendant's name and the case number. The court indicated that it did not have evidence to support defendant's claim of offsetting payments.
The trial court took a recess and then went back on the record to allow defendant to raise a separate issue unrelated to victim restitution. After indicating it was taking another recess, the court went back on the record at defense counsel's request. Defense counsel stated that defendant wanted counsel to "reiterate to the Court that he feels the evidence of his payments was included in the documents that the Court reviewed today as well as . . . all of the information that was discussed at the time of the plea." The court told defense counsel that if counsel "decide[d] to put [the matter] back on calendar" the court would "be glad to look at it if you believe it has merit."
On March 9, 2016, defendant filed a notice of appeal from the restitution order.
III. DISCUSSION
Defendant contends that the restitution order was an abuse of discretion because (1) there was not substantial evidence that Chase Bank suffered a loss, and (2) there was a dispute about whether defendant had made offsetting payments to some of the financial institutions and the court refused to examine available records to resolve the issue. Defendant also argues that his federal constitutional right to due process was violated.
A. General Principles Regarding Victim Restitution
Section 1202.4 declares "the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." (Id., subd. (a)(1).) Thus, "in 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 or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." (Id., subd. (f).) Absent "compelling and extraordinary reasons," restitution "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct." (Id., former subd. (f) & (f)(3); Stats. 2012, ch. 868, § 3; Stats. 2012, ch. 873, § 1.5; see People v. Martinez (2005) 36 Cal.4th 384, 389 [applying statute scheme in existence at the time of the defendant's crime].)
However, "[a] restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall. [Citations.]" (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172.) Consequently, "a victim is not entitled to restitution for the value of property that was returned to him or her." (Id. at p. 1180.) A restitution obligation may be offset by payments that the defendant has made to the victim for the same item of loss. (See People v. Bernal (2002) 101 Cal.App.4th 155, 168 (Bernal) [the defendant is entitled to offset for payments "to the extent that those payments are for items of loss included in the restitution order"]; People v. Jennings (2005) 128 Cal.App.4th 42, 58 (Jennings).)
The defendant has the right to a restitution hearing "to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) " '[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]' " (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045 (Keichler).) "Once the victim has 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. [Citations.]" (People v. Prosser (2007) 157 Cal.App.4th 682, 691 (Prosser).)
The victim restitution statute, "[s]ection 1202.4[,] does not, by its terms, require any particular kind of proof." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli).) As at other sentencing hearings, the trial court is entitled to consider a wide variety of information, including hearsay in the probation report. (People v. Baumann (1985) 176 Cal.App.3d 67, 81; People v. Foster (1993) 14 Cal.App.4th 939, 946 (Foster), superseded by statute on another point as recognized in People v. Birkett (1999) 21 Cal.4th 226, 238-242.) " ' "[S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes." [Citation.]' [Citation.] [¶] This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.]" (Foster, supra, at p. 947; accord, In re Brittany L. (2002) 99 Cal.App.4th 1381, 1392.)
Consequently, the victim's statements in the probation report regarding the value of stolen property may be "prima facie evidence of value for purposes of restitution. . . . [¶] . . . When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount." (Foster, supra, 14 Cal.App.4th at pp. 946-947; accord, People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320; People v. Lehman (2016) 247 Cal.App.4th 795, 801; People v. Weatherton (2015) 238 Cal.App.4th 676, 684; People v. Lockwood (2013) 214 Cal.App.4th 91, 96; Gemelli, supra, 161 Cal.App.4th at p. 1543; Keichler, supra, 129 Cal.App.4th at p. 1048; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407 (Pinedo).) "Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. [Citation.]" (Keichler, supra, at p. 1048; accord, Pinedo, supra, at pp. 1406-1407.)
For example, in Foster, the defendant was ordered to pay $8,000 in restitution for a stolen Persian rug. (Foster, supra, 14 Cal.App.4th at p. 943.) The order was based on the victim's statement in the probation report that she had paid that amount for the rug. (Id. at p. 944.) On appeal, the defendant argued that documentary evidence was required, and that the court could not rely on the victim's uncorroborated statement to establish the value of the rug. (Id. at p. 945.) The appellate court disagreed, stating that "the trial court is entitled to consider the probation report when determining the amount of restitution. A property owner's statements in the probation report about the value of her property should be accepted as prima facie evidence of value for purposes of restitution." (Id. at p. 946.) On the issue of documentary evidence of value, the appellate court observed that, "[i]n many other contexts, an owner's opinion of the value of his or her property is sufficient evidence to establish value. (See Evid. Code, § 810 et seq.) There is no justification for requiring a more stringent rule in the context of the relaxed procedure of a hearing to determine conditions of probation. [Citation.]" (Id. at p. 948.)
A trial court's restitution order is reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The abuse of discretion standard " 'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.] Under this standard, while 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." (Id. at pp. 663-664.) " ' " ' "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." ' [Citations.]" [Citation.]' [Citation.]" (Keichler, supra, 129 Cal.App.4th at p. 1045.) Moreover, "[w]e 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. [Citations.]" (People v. Baker (2005) 126 Cal.App.4th 463, 469 (Baker).)
B. No Abuse of Discretion Has Been Shown
In this case, the probation officer's waived referral memorandum included statements from six of the victimized financial institutions concerning the amount of their losses, and no evidentiary objection was raised by defendant to the court's consideration of their statements. The probation officer's waived referral memorandum disclosed the identity of the representative from each financial institution and the amount of loss claimed by the representative. All but one of the claimed losses corresponded exactly to the evidence of losses presented at the preliminary examination, and indeed defendant raised no specific objection to the amount of the losses claimed at the restitution hearing other than as to Chase Bank.
As to Chase Bank, the prosecution indicated at the sentencing hearing that a claim of loss was being made. At the restitution hearing, the prosecution provided documentary evidence to support the claim of loss. Indeed, on appeal, defendant does not dispute that the evidence reflects that he used his Chase credit card to purchase items totaling $4,556.63 at Nordstrom, that he subsequently returned all the items to Nordstrom, that he had Nordstrom credit his Wells Fargo account instead of his Chase credit card, that he reported his credit card as lost to Chase Bank, and that Chase Bank treated the Nordstrom purchase as fraudulent. On this record, a factual and rational basis exists for the trial court's conclusion that Chase Bank suffered a loss of $4,556.63. Although defendant on appeal contends that a conflicting inference may be drawn from certain documents and from Chase Bank's statement to the probation officer regarding whether it suffered a loss, we may not reweigh or reinterpret the evidence. (Baker, supra, 126 Cal.App.4th at p. 469.) Moreover, defendant's argument that "the evidence demonstrates that Chase did not credit [him] for [$4,556.63] and that [he] carried a balance on his Chase card in that amount," indicates that defendant had not paid the amount back to Chase Bank and further supports the trial court's award of restitution to Chase Bank in that amount.
Although defendant contended at the restitution hearing that he had made offsetting payments to several of the financial institutions, and although he was apparently able to calculate the sum of those payments as totaling $14,342, he did not offer any evidence to support his contention at the hearing. Instead, he attempted to place the burden on the prosecution and/or the court to sift through a box of documents, which the prosecutor had apparently brought to the hearing, to determine whether there was any evidence to support his claim. It was defendant's burden, however, to present any supporting evidence to the court. (See, e.g., Prosser, supra, 157 Cal.App.4th at p. 691; Foster, supra, 14 Cal.App.4th at pp. 946, 947.)
After the matter was submitted by the parties, after the trial court issued its restitution order, and after the court twice took a recess, defendant contended for the first time that "evidence of his payments was included in the documents that the Court reviewed" at the restitution hearing and was also supported by "information that was discussed at the time of the plea."
First, however, the matter had already been submitted by this point, the court had already issued its ruling, and a recess had already been taken twice. The court nonetheless invited defendant to put the matter back on calendar if he or his counsel believed the offset claim "has merit." The record does not reflect that defendant utilized that opportunity to put the matter back on calendar for consideration by the court.
Second, with respect to the prosecution's multi-page exhibit that was admitted into evidence at the restitution hearing and considered by the trial court, defendant never identified for the court which page, or which entries on a particular page, supported his claim of offsetting payment(s) to a specific financial institution. Again, defendant attempted to place the burden on the prosecution and the court to ascertain whether there was any evidence that might support his claim of offset.
Third, to the extent a Wells Fargo account statement, which is contained in the exhibit that was admitted into evidence at the restitution hearing, reflects that defendant made payments out of his Wells Fargo account to some of the victimized financial institutions, the account statement does not establish that the payments reduced the losses suffered by the victims in the amounts claimed by defendant. As the Attorney General points out, it is not clear from the Wells Fargo account statement (or anything else in the record) whether any of the payments defendant made to the victimized financial institutions were to the particular accounts that defendant used for his fraudulent scheme. Even if the payments were to the particular accounts that defendant used for his fraudulent scheme, it is not clear from the Wells Fargo account statement (or anything else in the record) whether the payments actually offset the losses defendant caused by his grand theft offense, or whether the payments were instead for other charges or debts that defendant owed the financial institutions. (See Bernal, supra, 101 Cal.App.4th at p. 168 [the defendant is entitled to offset for payments only "to the extent that those payments are for items of loss included in the restitution order"]; Jennings, supra, 128 Cal.App.4th at p. 58.)
For example, regarding Bank of America, it sought restitution for a loss of $15,356.64. At the restitution hearing, defendant contended that he only owed Bank of America $7,585.10, because he had made offsetting payments to it. On appeal, defendant identifies two payments that he made to Bank of America, as reflected in the Wells Fargo account statement that was admitted into evidence at the restitution hearing: a payment for $7,206 on July 14, 2014, and a payment for $65.54 on September 2, 2014. However, the amended grand theft count to which defendant pleaded no contest reflects that the offense took place on or about July 18 through August 7, 2014. The evidence at the preliminary examination similarly reflects that the fraudulent transactions on defendant's Bank of America credit card took place between July 31 and August 1, 2014. Thus, the bulk of the offsetting payments that defendant claims he made to Bank of America, that is, a payment of $7,206 on July 14, 2014, was made prior to the commission of defendant's grand theft offense. The reasonable inference is that defendant's July 14, 2014 payment to Bank of America was for some other credit card charge or debt he owed Bank of America, rather than a purported offsetting payment he made to Bank of America ahead of time for his subsequent grand theft offense.
On appeal, defendant claims that the Wells Fargo account statement reflects a payment of $65.64 to Bank of America on September 2, 2014. The exhibit reflects that the payment was for $65.54. --------
On appeal, defendant also contends that he made offsetting payments to Chase Bank of $5,500 on July 28, 2014, and $53.40 on August 6, 2014. The prosecution had sought restitution of $4,556.63 for the July 19, 2014 Nordstrom purchase on defendant's Chase credit card that was returned to defendant's Wells Fargo account. It does not seem reasonable that defendant would pay Chase Bank extra money ($5,500 plus $53.40) for his offense involving $4,556.63. Rather, the reasonable inference is that defendant's payments were for some other credit card charges or debt he owed Chase Bank.
In sum, the probation officer's waived referral memorandum contained statements from six of the victimized financial institutions concerning the amount of their losses. All but one of the statements of loss corresponded to the penny with the evidence presented at the preliminary examination, and therefore not surprisingly defendant never objected on evidentiary grounds to the court's consideration of the victims' statements of loss in the waived referral memorandum. The prosecution also presented documentary evidence at the restitution hearing concerning the loss suffered by a seventh financial institution, Chase Bank. Defendant's only specific objection as to the financial institutions other than Chase Bank was that he had made offsetting payments. However, defendant himself failed to present any evidence of the purported offsetting payments, and he failed to timely specify during the restitution hearing where such evidence could be found within the exhibit presented to the court by the prosecution. Moreover, the exhibit, which includes defendant's Wells Fargo account statement, does not establish that defendant made payments to the victimized financial institutions that reduced the losses they suffered as a result of defendant's grand theft offense. "Given defendant's failure to offer any evidence to challenge any of the amounts presented, the trial court did not abuse its discretion in awarding those amounts." (Keichler, supra, 129 Cal.App.4th at p. 1048.)
Based on People v. Harvest (2000) 84 Cal.App.4th 641 (Harvest), defendant contends that the trial court abused its discretion by "refus[ing] to examine" documents that "were available" and that defendant had "pointed . . . to." Defendant argues that the court improperly "shift[ed] the burden to [him] to produce documents that the prosecutor already had in her possession (and had already offered to produce)."
We are not persuaded by defendant's argument. In Harvest, the appellate court agreed with the defendant's contention that there was not an adequate factual basis for part of the restitution order. (Harvest, supra, 84 Cal.App.4th at pp. 645, 652, 653.) The court briefly explained that although one victim's family "could support their claim with documentation and stood ready to testify," the second victim's family "had neither of these supports. There was mention of the [second victim's family's] claim in the probation officer's report, which may satisfy notice requirements for due process [citation], but it cannot take the place of evidence. [Citation.]" (Id. at p. 653.)
In this case, the record reflects that the prosecution was prepared to present documentation to support the claims of loss by the financial institutions. The prosecutor specifically stated that she had a "box of documents with regard to every single bank including American Express," and that if the court "need[ed] more documentation, [she had] it." At the hearing, however, defendant only contested the restitution requested by the victims on essentially two grounds: (1) Chase Bank had earlier reported no loss to the probation officer, and (2) he had made offsetting payments to most of the victims. The prosecution in response pointed to the documentary evidence specific to Chase Bank's loss, and those documents were admitted into evidence at the restitution hearing. Regarding the offsetting payments, defendant never specifically identified the evidence supporting such payments during the restitution hearing. Under the circumstances, there was a factual and rational basis for the court to conclude that (1) the victims had suffered losses in the amounts claimed, based on the victims' statements of loss in the probation officer's waived referral memorandum and based on the documents the prosecution admitted into evidence at the restitution hearing, and that (2) any offsetting payments by defendant had not been established. Defendant has not shown an abuse of discretion by the trial court. (Keichler, supra, 129 Cal.App.4th at p. 1045; see Baker, supra, 126 Cal.App.4th at p. 469.)
We are similarly unpersuaded by defendant's reliance on People v. Vournazos (1988) 198 Cal.App.3d 948 (Vournazos). In Vournazos, the probation report contained a list from the victim regarding his loss, including damage to his Mercedes and the loss of personal property such as sunglasses and leather address books, for a total of $2,180, resulting from the defendant's unlawful driving or taking of his vehicle. (Id. at p. 952 & fn. 2.) The trial court ordered restitution as requested in the amount of $2,180. (Id. at p. 953.) The appellate court determined, however, that the restitution order was not supported by substantial evidence because neither the victim's statement nor the probation officer's testimony "established that the sum claimed . . . for loss of property was based on the replacement cost of the property" or "that the sum of $300 claimed for repair of damage to the Mercedes represented the actual cost of the repair" as statutorily required. (Id. at p. 958, italics added [referring to former § 1203.04, subd. (d) (Stats. 1984, ch. 1340, § 4, p. 4726), which contained the same language as current § 1202.4, subd. (f)(3)(A) ("The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible")].)
Vournazos does not hold that a sentencing court is precluded from relying on information contained in the probation report. Rather, Vournazos addressed the incompleteness of the information relied upon by the trial court in determining the amount of the loss as prescribed by statute. In Vournazos, a dollar amount was assigned to each damaged or stolen item that was listed in the probation report without any indication that the amount was either the replacement cost of the stolen property or the actual cost of repairing the damaged property. (Vournazos, supra, 198 Cal.App.3d at pp. 958-959, 952, fn. 2.) In contrast to Vournazos, the stolen property in this case involved discrete monetary transactions, and the victims' statements to the probation officer and the documentary evidence presented by the prosecution established a prima facie case for restitution of the claimed loss. There was no need for additional evidence regarding "replacement cost" or the "actual cost" of repair as in Vournazos. (Id. at p. 958.)
C. No Due Process Violation Has Been Shown
Defendant contends that he was denied due process because the trial court "ignore[d] evidence the prosecutor possessed and that [defendant] argued would make his case," denied him the " 'opportunity to challenge the figures in the probation report at the sentencing hearing,' " and denied him a " 'full and fair opportunity to present affirmative evidence.' "
"The scope of a criminal defendant's due process rights at a hearing to determine the amount of restitution is very limited: ' "A defendant's due process rights are protected when the probation report gives notice of the amount of restitution claimed . . . , and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing." ' [Citations.]" (People v. Cain (2000) 82 Cal.App.4th 81, 86.)
In this case, defendant fails to demonstrate that his right to due process was violated. As we have explained, defendant did not specifically identify during the restitution hearing the evidence that purportedly supported his claim of offsetting payments to the victimized financial institutions, despite having nearly two months to prepare between the sentencing hearing and the restitution hearing. After the court ruled and after the restitution hearing had concluded, defendant referred to one documentary exhibit, but he still failed to identify within that exhibit the purported evidence of offsetting payments. Moreover, the exhibit does not establish that any payments by defendant to the victimized financial institutions actually offset the losses incurred by the victims in this case. Nevertheless, the trial court invited defendant to place the matter on calendar again and to show the court whatever supporting evidence that defendant believed existed, but defendant apparently declined the opportunity to do so. The record reflects that although defendant apparently had sufficient information to claim at the restitution hearing that he had made offsetting payments totaling $14,342, he never specifically identified or otherwise offered supporting evidence at the hearing. On this record, we find no due process violation.
IV. DISPOSITION
The January 29, 2016 restitution order is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.