Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCN251315, Joel M. Pressman, Judge.
IRION, J.
Jacqueline Mastrodimos pled guilty to four counts of forgery of checks. (Pen. Code, § 470, subd. (d).) The trial court sentenced Mastrodimos to four years in prison and, pursuant to section 1202.4, imposed restitution orders in favor of three different parties, including an order in the amount of $165,358.10 in favor of Norma Clark for professional fees that the victim of the crimes owed Clark for investigating the fraud and restoring the victim's good financial standing. Mastrodimos challenges that restitution order, arguing among other things, that the order was improper because Clark was not a victim of the crimes. We conclude that Mastrodimos's argument has merit. Accordingly, we reverse the portion of the judgment awarding restitution to Clark, and we remand with directions for the trial court to hold a further restitution hearing to determine whether some or all of Clark's fees should be the subject of an additional restitution award to the victim.
Unless otherwise indicated, all further statutory references are to the Penal Code.
I
FACTUAL AND PROCEDURAL BACKGROUND
Mastrodimos rented a room in the home of Julie Johansen. After some time, Johansen discovered that her home and a rental property she owned were in foreclosure and her financial condition had been compromised. Someone had been intercepting Johansen's mortgage payments, several credit cards had been opened by Mastrodimos in Johansen's name, Johansen's lines of credit had been accessed by Mastrodimos, and checks had been written from Johansen's bank accounts to Mastrodimos. Johansen turned to her friend and tax accountant, Clark, when she found out about the threatened foreclosures. Over several months, Clark worked tirelessly to prevent the foreclosures, investigate the fraud and restore Johansen's financial condition.
Mastrodimos stipulated to the preliminary hearing transcript as the basis for her guilty plea, and we therefore rely on it for the factual background of the case.
Mastrodimos was charged with one count of identity theft (§ 530.5, subd. (a)); 54 counts of forgery of checks (§ 470, subd. (d)); and one count of false personation (§ 529, subd. (3)). After Mastrodimos pled guilty to four counts of forgery of checks, the trial court sentenced her to four years in prison and imposed restitution orders pursuant to section 1202.4.
The parties stipulated to restitution orders of $105,114 for Johansen and $18,965 for American Express. The stipulated restitution order for Johansen did not include any amounts for the professional fees that she incurred as a result of Clark's work on her behalf. Clark had incurred $235,358.10 in professional fees as a result of Mastridomos's criminal conduct, but Johansen was financially able to pay only $15,000 of that amount.
The parties disagreed about whether restitution should be ordered in favor of Clark for the balance of the professional fees that Johansen owed to Clark. The trial court held a restitution hearing on that issue, at which it heard testimony from Clark and Johansen and reviewed documentation of Clark's professional services.
Mastrodimos was not present at the hearing, but her attorney stated that although he did not "believe there was actually a personal waiver entered by Ms. Mastrodimos, " he was "prepared to go forward without her presence." The Attorney General concedes that it was error for the trial court to proceed in Mastrodimos's absence, but contends that the error was harmless. Because we reverse the restitution order on other grounds, we need not, and do not, decide whether Mastrodimos's absence at the restitution hearing provides an additional ground to reverse the restitution order.
Clark testified that she was an accountant licensed as an enrolled agent by the Department of the Treasury, and her standard rate was $125 per hour. By reviewing documentation associated with her representation of Johansen, she determined that she had worked over 1, 800 hours for Johansen, which, along with costs, resulted in a professional fee of $235,358.10. Clark also described a bill for $65,000 that she had prepared earlier in her representation of Johansen. She testified that the amount of $65,000 was not based on an actual calculation of hours worked, but instead was based on an agreement with Johansen that she had worked 520 hours on Johansen's behalf to that point in time. There was some confusion during Clark's testimony about whether the 520 hours and corresponding $65,000 were included in calculating the $235,358.10.
The trial court awarded restitution to Clark in the amount of $165,358.10. It explained that Clark was entitled to obtain restitution of her fees and costs because "the victim..., Ms. Johansen, [wa]s obligated... to pay" Clark to recover the amounts associated with Mastrodimos's crimes. The trial court, however, expressed "some serious problems with how this amount is calculated." It therefore deducted $15,000 for the amount that Johansen had already paid to Clark, and it further deducted the earlier billed $65,000 "because it has not been established as credible time."
II
DISCUSSION
A. Restitution to Clark Was Not Permitted by Section 1202.4 Because She Was Not a Victim
Mastrodimos contends that the restitution order to Clark was unauthorized under section 1202.4 because Clark was not a victim of Mastrodimos's crimes as defined in the statute. "The standard of review of a restitution order is abuse of discretion, but 'a restitution order "resting upon a ' "demonstrable error of law" ' constitutes an abuse of the court's discretion." ' " (People v. Duong (2010) 180 Cal.App.4th 1533, 1537.)
Defense counsel raised the same argument in the trial court, contending that restitution should not be ordered because "Ms. Clark is simply not a victim."
We begin our analysis with an overview of the applicable statutory provisions. Section 1202.4, subdivision (f) authorizes restitution to crime victims, providing, with certain exceptions not relevant here, that "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." The restitution order is enforceable as if it were a civil judgment. (§ 1202.4, subd. (i).)
Section 1202.4 implements article I, section 28, subdivision (b) of the California Constitution, which provides that " '[i]t is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.' " (People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).)
Section 1202.4, subdivision (f)(3) states that the restitution order "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, including, but not limited to, " a list of 11 enumerated categories of economic loss. As relevant here, one category of recoverable economic loss is comprised of "[a]ctual and reasonable attorney's fees and other costs of collection accrued by a private entity on behalf of the victim." (§ 1202.4, subd. (f)(3)(H).) As our Supreme Court has explained, the list of 11 categories is "nonexclusive." (Giordano, supra, 42 Cal.4th at p. 656.)
"Under the plain language of [section 1202.4]..., the court may order restitution only to a 'victim.' " (People v. Slattery (2008) 167 Cal.App.4th 1091, 1095 (Slattery), italics added.) The statute defines the term "victim" as used in section 1202.4, subdivision (f):
"(k) For purposes of this section, 'victim' shall include all of the following:
"(1) The immediate surviving family of the actual victim.
"(2) Any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.
"(3) Any person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions:
"(A) At the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the victim.
"(B) At the time of the crime was living in the household of the victim.
"(C) At the time of the crime was a person who had previously lived in the household of the victim for a period of not less than two years in a relationship substantially similar to a relationship listed in subparagraph (A).
"(D) Is another family member of the victim, including, but not limited to, the victim's fiancé or fiancée, and who witnessed the crime.
"(E) Is the primary caretaker of a minor victim.
"(4) Any person who is eligible to receive assistance from the Restitution Fund pursuant to Chapter 5 (commencing with Section 13950) of Part 4 of Division 3 of Title 2 of the Government Code.
As relevant here, the restitution fund referenced in the statute is available to a " '[d]erivative victim' " of a crime, defined as "an individual who sustains pecuniary loss as a result of injury or death to a victim" (Gov. Code, § 13951, subd. (c)), but only if the derivative victim meets the same relationship requirements to the victim that are also specified in section 1202.4, subdivision (k)(3). (Gov. Code, § 13955, subd. (c).)
"(5) Any governmental entity that is responsible for repairing, replacing, or restoring public or privately owned property that has been defaced with graffiti or other inscribed material, as defined in subdivision (e) of Section 594, and that has sustained an economic loss as the result of a violation of Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7 of the Penal Code." (§ 1202.4, subd. (k).)
As we will explain, the statutory definition of "victim" in section 1202.4, subdivision (f) does not describe anyone in Clark's position, and she is therefore not entitled to a restitution order.
As an initial matter we note that the definitions of "victim" in section 1202.4, subdivision (k)(1) and (3) do not apply because Clark is not part of Johansen's family or household, was not Johansen's caretaker, is not eligible to participate in the restitution fund described in the Government Code (see Gov. Code, §§ 13951, 13955) and is not a governmental entity responsible for restoring defaced property.
Clark incurred the professional fees through her accounting practice. Therefore, the most applicable statutory definition of "victim" is that set forth in section 1202.4, subdivision (k)(2), which identifies "[a]ny... legal or commercial entity when that entity is a direct victim of a crime." In this context, "the California Supreme Court has defined 'direct victim' as: 'entities that are the "immediate objects of the... offenses" '; or ' "entities against which the... crimes [have] been committed." ' " (Slattery, supra, 167 Cal.App.4th at p. 1095.) Neither Clark nor her accounting practice meets the definition of a direct victim, as Mastrodimos's crimes were not committed against them and they were not objects of the offenses.
As none of the statutory definitions of "victim" apply to Clark, she is not entitled to a restitution order under section 1202.4. We therefore conclude that the trial court abused its discretion in awarding restitution to Clark.
We note, however, that because the trial court found that Johansen was obligated to make payment of Clark's fees, those fees may be included in a restitution award to Johansen because she is properly classified as a victim under section 1202.4. We therefore remand to the trial court for a further restitution hearing at which the People may seek an additional restitution order in favor of Johansen. The trial court shall consider and determine the amount of that additional award, if any, in the first instance, and we express no opinion on that subject.
We need not, and do not, reach Mastrodimos's argument that the trial court improperly failed to determine whether Clark's fees were reasonable and that the trial court should not have included Clark's time spent attending court hearings in calculating Clark's restitution award.
DISPOSITION
The portion of the judgment awarding restitution in the amount of $165,358.10 to Norma Clark is reversed, and this matter is remanded to the trial court to hold a further restitution hearing consistent with this opinion.
WE CONCUR: McDONALD, Acting P. J., McINTYRE, J.