Opinion
D057558
08-26-2011
THE PEOPLE, Plaintiff and Respondent, v. FAUSTINO IGNACIO MARKS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SCD220628)
APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed in part, reversed in part and remanded.
INTRODUCTION
A jury convicted Faustino Ignacio Marks of soliciting insurance fraud. (Pen. Code, § 550, subd. (a)(1).) The trial court suspended imposition of sentence and granted Marks three years of summary probation. The court also ordered him to pay victim restitution of $7,670.
Marks appeals, contending the court abused its discretion and deprived him of due process of law by denying his request for a restitution hearing. The People concede and we agree the court should have conducted a restitution hearing in this case. We, therefore, reverse the court's restitution order and remand the matter to the court for further restitution proceedings. We affirm the court's judgment in all other respects.
BACKGROUND
Landscaper Peter Vasquez purchased a commercial general liability insurance policy from Colony Insurance, which he believed included coverage for his tools. He purchased the policy through Tiffany Tharpe at a local insurance and financial services company. He subsequently renewed the policy. Approximately a month later, his tools were stolen. He reported the theft to the San Diego Police Department and contacted Colony Insurance. Colony Insurance informed him his policy did not cover the loss of his tools and advised him to contact his insurance broker for an explanation. He then contacted Tharpe, who told him there had been a mistake and she would take care of the matter. Vasquez later spoke with Marks, the owner of the company where Tharpe worked, who told him the mistake was the result of a typo. Marks advised Vasquez to purchase another insurance policy, wait a few days to avoid suspicion, report his tools stolen again, and file a new insurance claim. When Vasquez pointed out he had already reported the theft to the police department, Marks told him, "Don't worry. The police reports don't talk to each other."
DISCUSSION
I
The probation officer's report prepared for Marks's sentencing hearing recommended he pay victim restitution of $7,670, the approximate value of Vasquez's stolen tools. At the sentencing hearing, defense counsel informed the court "we are going to need to set a restitution hearing" as "[w]e don't know what was lost. We have — have a very informal accounting." Defense counsel subsequently asked "that the restitution amount not be ordered at this time. Perhaps we can reach a stipulation, short of having a hearing, and all you have seen as far as numbers is the rough jotting."
Conversely, the prosecutor asked the court to order restitution, arguing a victim's statement to the probation officer was prima facie evidence of the value of what the victim lost. He further argued Vasquez was unlikely to have receipts for his tools and if he came to a restitution hearing to testify to the cost of each tool, the court would have to accept his testimony.
After hearing the prosecutor's arguments, the trial court informed defense counsel it was going to go ahead and order the restitution. It then ordered Marks to pay restitution of $7,670 as recommended by the probation report.
II
Marks contends the trial court abused its discretion and deprived him of due process of law by failing to set a restitution hearing. The People concede and we agree the trial court should have conducted a restitution hearing before ordering Marks to pay victim restitution.
Generally, "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. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." (Pen. Code, § 1202.4, subd. (f).) However, "[t]he defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution." (Pen. Code, § 1202.4, subd. (f)(1).) "Due process is satisfied if [the defendant] is given notice of the amount sought and a hearing to contest that amount." (People v. Thygesen (1999) 69 Cal.App.4th 988, 993.)
Here, because the trial court did not afford Marks a hearing to contest the claimed restitution amount, we reverse the trial court's restitution order and remand the matter to the trial court to conduct further restitution proceedings. In view of our conclusion, we need not address Marks's contention the restitution amount the trial court ordered did not equal the victim's economic loss.
DISPOSITION
The restitution order is reversed and the matter is remanded to the trial court for further restitution proceedings. The trial court's judgment is affirmed in all other respects.
MCCONNELL, P. J. WE CONCUR:
HALLER, J.
O'ROURKE, J.