Opinion
D048005
6-5-2007
THE PEOPLE, Plaintiff and Respondent, v. ISMAEL ANDRACA MONTESINOS, Defendant and Appellant.
NOT TO BE PUBLISHED
The People charged Ismael Andraca Montesinos (also known as Joseph Vincenzo Leonard and Marco Vincenzo Leonardi, Jr.) with five counts of caretaker theft from Margaret Schwab (Margaret), an elder (Pen. Code, § 368, subd. (e)); seven counts of grand theft of personal property (§ 487, subd. (a)); 11 counts of using personal identification information of another (§ 530.5, subd. (a)); 11 counts of obtaining property by false pretenses (§ 532, subd. (a)); one count of perjury (§ 118, subd. (a)); and 11 counts of forgery (§ 470, subd. (a)).
We use first names solely for purposes of clarity.
All further statutory references are to the Penal Code.
Under a plea agreement: (1) Montesinos pleaded guilty to one count each of caretaker theft from an elder (count 1), grand theft of personal property (count 33), use of personal identification information of another (count 4), and obtaining property by false pretenses (count 15); (2) the People dismissed the remaining charges; (3) Montesinoss sentence was set for three years; and (4) it was agreed that restitution should include all funds in the Schwab Family Exemption Trust and the Marital Deduction Trust (together the Trust). Montesinos executed a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
The court sentenced Montesinos to a three-year prison term on count 1 and concurrent terms of two years each for counts 4, 15 and 33 and ordered him to pay restitution under section 1202.4, subdivision (f) as follows: $89,062.29 to various credit card companies; $25,200 to Dr. Gregory Schwab (Gregory), Margarets adopted son, for lost wages; $16,128.45 to Gregory for attorney fees; $27,173.72 to the Trust for attorney fees; $13,855 to the Trust for a vehicle purchase; $6,476.64 to the Trust for auto insurance; $1,350 to the Trust for driving under the influence (DUI) fines; $6,159.36 to the Trust for medical insurance; $10,000 to the Trust for a missing wedding ring set; $14,261.59 to the Trust for storage fees; $109,800 to the Trust for the fair market rent of a condominium; $35,000 to the Trust for the loss of value in a retirement facility "buy-in" for Margaret; and $162,508.37 to the Trust for trustee fees, trustee attorney fees, independent contractor fees, and additional professional fees.
Montesinos appeals, contending the court abused its discretion by ordering restitution for: (1) attorney fees not authorized by section 1202.4; (2) Gregorys lost wages at a rate not supported by substantial evidence and for hours not statutorily authorized; and (3) miscellaneous items where the ordered amounts and/or the required nexus between his criminal conduct and the economic loss were not supported by substantial evidence.
We conclude the court abused its discretion by ordering restitution for the replacement value of the wedding ring set because there was insufficient evidence to establish the value of that property. We therefore modify the judgment to reflect a reduction in the total restitution order by $10,000. In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
As there was no trial, Montesinos stipulated that the preliminary hearing transcript would provide the factual basis for his guilty plea.
In 1996 Margaret, a widow born in 1918, met Montesinos at White Sands retirement home (White Sands), where she lived and he worked as a dining room host. Margaret paid White Sands nearly $100,000 to "buy-in" to the facility. This buy-in guaranteed that while she resided there, she would receive skilled nursing care for life even if she depleted her financial resources. Gregory, an orthopedic surgeon, was concerned about his mothers mental state. He characterized her as very forgetful and out of touch with reality.
Montesinos was born in Mexico and legally entered the United States in the early 1990s. He obtained his job with White Sands using the alias Marco Vinnie Leonardi and a social security number belonging to a 10-year-old child. Montesinos cultivated a friendship with Margaret—who was estranged from her son and out of frequent contact with her daughter who lived in the Netherlands—and left the employment of White Sands because of its policy against employee fraternization with residents.
Before Montesinos left White Sands, he wrote Margaret a letter that contained the following sentiments: (1) he was lonely and grateful to have found Margaret; (2) he thought of Margaret as his surrogate mother; (3) Margaret should trust him as if he were her son; (4) he felt a special love for her; (5) he wanted to take care of her; and (6) he wanted her to contact him.
Montesinos did remain in contact with Margaret. On a weekly basis, Montesinos would pick Margaret up from White Sands and have her spend one or two nights at the condominium where he lived with his partner Chad Hughes. Margaret had purchased the condominium but gave Montesinos a one-half interest in the property and put his name on the title.
Montesinos told Margaret: (1) his parents were deceased; (2) he was born in New York and educated in Italy; (3) he was born on June 26, 1969, which is the same birthday as her son, Gregory; (4) and he was a Navy SEAL. In truth, Montesinoss parents were both alive and living in Mexico, where he was born, he does not have the same birthday as Gregory, and he does not have a military service record. Also, although Montesinos did not meet Margaret until after her husbands death, an altered photograph depicts Montesinos with Margaret and her husband, and a birth certificate falsely shows Montesinos is their biological son.
In 1997 Gregory received phone calls from Margarets friends, banks, and the director of White Sands alerting him to concerns that Montesinos was exercising undue influence over Margaret and financially abusing her. Specifically, he learned of Montesinoss interest in the condominium that his mother had purchased.
In response, Gregory initiated a conservatorship proceeding against his mother. In preparation for the proceeding, Margaret was examined by a psychiatrist, Dr. Perry, who did not make a conclusive finding as to her mental state but nevertheless wrote to the California Department of Motor Vehicles recommending they revoke her drivers license. Another psychiatrist, Dr. Kalish, reviewed Dr. Perrys competency evaluation and believed that Margaret was not competent to make her own medical or financial decisions.
The conservatorship proceeding was settled out of court but not before accruing substantial attorney fees attributable to the representation of Gregory, Margaret, and Montesinos. The terms of the settlement were as follows: (1) Montesinos would quitclaim his interest in the condominium to the Trust; (2) Montesinos would continue to reside, rent free, at the condominium as long as he paid utilities and committed no waste; (3) Margaret would transfer the bulk of her assets to the Trust; (4) Margaret would relinquish her power to amend or revoke the Trust; (5) Margaret would relinquish her position as trustee of the Trust and appoint Elizabeth Del Pozo as trustee, and (6) Gregory would be effectively disinherited. Del Pozo charged Margaret for her services as Trustee.
After the settlement, there was essentially no contact between Margaret and Gregory. Their previous estrangement was made worse by Montesinos, who refused to allow Margaret to speak to Gregory when he called the condominium. In May 2001 Margaret moved into the condominium with Montesinos and Hughes, but maintained a studio at White Sands, instead of her previously more expensive accommodation, to retain the medical benefits. Margaret cancelled her White Sands contract in January 2003.
Between 1996 and 2004, Montesinos opened over 30 credit card accounts under his alias, Marco Leonardi, in which Margaret was the primary cardholder. Substantial outstanding balances remained on many of these cards for which Del Pozo was responsible for making payments. Either Del Pozo or Margaret authorized, for the benefit of Montesinos, the payment of: (1) $30,841 for a new Nissan sports utility vehicle (the SUV); (2) $6,476.64 for automobile insurance; (3) $6,159.36 for medical insurance; and (4) $1,350 for DUI fines. Montesinos was made a substantial beneficiary under Margarets will.
In 2003 Gregory was contacted by a federal agent who was investigating Montesinos for passport fraud. The agent expressed concern that Montesinos was taking advantage of Margaret, who did not seem to be mentally competent. Gregory initiated a second conservatorship proceeding and was eventually made his mothers conservator. Gregory also initiated an elder abuse investigation by filing a report with the San Diego Police Department.
Montesinos was arrested for passport fraud in 2004 and Margaret had to move into skilled nursing facilities because of her declining health. Margaret died in November 2004. Gregory noticed valuable items of jewelry, including his mothers wedding ring set, were missing from the estates assets. Gregory testified at the preliminary hearing against Montesinos in this matter and spent many days assisting the prosecution.
STANDARD OF REVIEW
We review restitution orders for an abuse of discretion. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) We recognize that a trial court has "broad discretion in setting the amount of restitution" (People v. Balestra (1999) 76 Cal.App.4th 57, 63), and the amount may be calculated by "any rational method that could reasonably be said to make the victim whole" (People v. Akins (2005) 128 Cal.App.4th 1376, 1387 (Akins)). "An abuse of discretion will not be found if there is a factual or rational basis for the amount of restitution ordered." (People v. Fortune (2005) 129 Cal.App.4th 790, 794.) "If there is some evidence to support the courts ruling, disputed or not, we will affirm the courts order." (People v. Rubics (2006) 136 Cal.App.4th 452, 462.) Therefore, we "will not disturb the trial courts determination unless it is arbitrary, capricious and exceeds the bounds of reason." (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.)
DISCUSSION
I. APPLICABLE LEGAL PRINCIPLES
The right of victims to claim restitution from convicted perpetrators for losses suffered as a result of the perpetrators criminal activities is enshrined in Californias Constitution. "It 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." (Cal. Const., art. I, § 28(b).)
"In keeping with the unequivocal intention that victim restitution be made, statutory provisions implementing the constitutional directive have been broadly and liberally construed." (People v. Lyon (1996) 49 Cal.App.4th 1521, 1525 (Lyon).) To implement this right to restitution, the Legislature adopted section 1202.4, which provides in part that "in every case in which a victim has suffered economic loss as a result of the defendants 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." (§ 1202.4, subd. (f), italics added.)
Subdivision (f)(3)(A), (E) and (H) of section 1202.4 provides that "[t]o the extent possible, 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 defendants criminal conduct, including, but not limited to, all of the following: [¶] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property . . . . [¶] . . . [¶] (E) Wages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution. Lost wages shall include any commission income as well as any base wages. . . . [¶] . . . [¶] (H) Actual and reasonable attorneys fees and other costs of collection accrued by a private entity on behalf of the victim." (Italics added.)
The primary purpose of restitution is to "fully reimburse the victim for his or her economic losses." (People v. Jennings (2005) 128 Cal.App.4th 42, 57.) However, "[a] restitution order has objectives beyond simply indemnifying the victim. It also seeks to rehabilitate the defendant and deter defendant and others." (People v. Bernal (2002) 101 Cal.App.4th 155, 161-162.) Restitution "is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine. [Citations.]" (People v. Moser (1996) 50 Cal.App.4th 130, 135-136.)
However, "the Legislature intended victim restitution as a civil remedy rather than as a criminal punishment." (People v. Harvest (2000) 84 Cal.App.4th 641, 649.) Therefore, the amount of restitution must be reasonably calculated to make the victim whole and additional monies cannot be ordered for punitive purposes. (See People v. Hudson (2003) 113 Cal.App.4th 924, 927.)
II. ANALYSIS
A. Attorney Fees
Montesinos first contends the court abused its discretion by ordering restitution for attorney fees not authorized by section 1202.4 subdivision (f)(3)(H), and requests the attorney fees orders be reversed despite defense counsels failure to object to the orders at the restitution hearing. This contention is unavailing as we conclude the attorney fees were statutorily authorized.
As previously discussed, the purpose of restitution is to fully reimburse the victim for economic losses. "However, a victim who suffers these economic losses would not be fully reimbursed if he or she was required to bear the expense of an attorney to recover for that damage." (People v. Fulton (2003) 109 Cal.App.4th 876, 884 (Fulton).) Mindful of the policy of full victim reimbursement for economic losses, the Legislature explicitly included "attorney fees that were incurred for collection purposes" among the specifically enumerated economic losses allowed by section 1202.4 subdivision (f)(3). (Fulton, supra, 109 Cal.App.4th at p. 884.)
In contrast, restitution orders for attorney fees incurred either to collect for noneconomic harm, such as pain and suffering, or to challenge a defendants defense of a criminal charge were not authorized by the statute as such orders had no relationship to the victims ability to be fully reimbursed for the economic harm caused by defendants criminal acts. (See Lyon, supra, 49 Cal.App.4th at p. 1526; Fulton, supra, 109 Cal.App.4th at p. 885.) An exception to the rule that attorney fees incurred by the victim for noncollection purposes are not the proper subject for a restitution order exists where such fees are intertwined with recoverable fees and the defendant has not sufficiently shown the correct apportionment. (Fulton, supra, 109 Cal.App.4th at p. 885.)
1. Attorney fees for the 1997 conservatorship proceeding
In 1997 Gregory petitioned the court to appoint him as the conservator of Margarets estate. In the petition, Gregory stated that Margaret needed a conservator because she was substantially unable to resist fraud and undue influence. Specifically, Gregory stated that: (1) Montesinos befriended Margaret while he was employed at White Sands; (2) Margaret bought the condominium for Montesinos to live in; (3) Margarets friends witnessed Montesinos signing Margarets name on checks and engaging in public displays of affection with her; (4) Montesinos was taking advantage of Margaret; and (5) that Gregory wanted "to do everything possible to protect his mother and her assets and seeks the courts help."
Gregorys allegations in the petition were not without merit. Montesinos began to use Margarets credit history to fraudulently procure credit cards as early as 1996 and he had a one-half interest in the condominium that represented a large portion of Margarets assets. While a conservatorship did not result from the proceedings, a settlement did force Montesinos to relinquish his interest in the condominium. Also, in theory, Margaret gained protection, due to trustee oversight, from further depletion instigated by Montesinos.
The court expressly found that "the original conservatorship action [the 1997 action] was necessitated by the actions of the defendant" and accordingly ordered restitution for the reasonable attorney fees incurred by Gregory and the Trust in undertaking such an action. Montesinos argues that a conservatorship was not the proper vehicle to recover for economic harm and thus the order was not statutorily authorized. On this issue Lyon, supra, 49 Cal.App.4th 1521, is instructive.
In Lyon, a restitution order for attorney fees incurred by the victim to prevent the criminal defendants disposal of his assets was a "proper, necessary, and logical result" of the defendants criminal conduct and the order was therefore upheld. (Lyon, supra, 49 Cal.App.4th at p. 1525.) We agree with the Peoples position that "it would lead to an absurd result . . . to allow a restitution order for attorney[] fees to preserve a defendants assets, and not to allow a restitution order for attorney fees to preserve and/or return a victims assets necessitated by a defendants criminal conduct."
This conservatorship proceeding would not have been initiated but for Montesinoss criminal conduct. The attorney fees necessitated by the proceeding and the resulting settlement were the "proper, necessary, and logical result" of his criminal conduct, and to deny the attorney fees would prevent full reimbursement for economic losses suffered. We therefore conclude that a conservatorship proceeding initiated to protect an elderly woman from undue influence and asset depletion that had the practical effect of returning a substantial asset misappropriated by Montesinoss criminal conduct was statutorily permissible.
2. Attorney fees and costs incurred by the Trust
The People presented evidence to the court that the Trust had paid $65,251.60 in attorney fees and court costs. This amount was included in the more general restitution awarded to the Trust in the sum of $162,508.37 for trustee fees, trustee attorney fees, and independent contractor and additional professional fees. The attorney fees were mainly incurred as a result of (1) a probate action brought against Margarets estate, (2) research and document preparation needed to determine the extent of the Trusts economic loss as a result of Montesinoss criminal conduct, and (3) normal attorney fees involved with the final administration of Margarets estate.
As to the probate action fees, it is relevant that in December 1997 Montesinos was named a major beneficiary under Margarets will, receiving the residue of her tangible personal property and one-third of the remaining trust estate. After Margarets death, Gregory and his sister, believing Montesinos not to be a proper beneficiary, contested the will. As the legal fees paid by the Trust were incurred in litigation to prevent the distribution of assets gained by undue influence, the probate action can be categorized as a "collection" proceeding under section 1202.4, subdivision (f)(3)(H).
With respect to whether the court properly ordered restitution for the fees incurred to research and prepare documents that determined the extent of the Trusts economic loss caused by Montesinoss criminal conduct, People v. Maheshwari, supra, 107 Cal.App.4th 1406, is instructive. In Maheshwari, the court stated that "[r]ecovery of reasonable attorneys fees and other costs of collection necessarily included the cost of the investigation to determine the extent of [the victims] loss. Without evidence of embezzlement [the victim] could not have maintained a civil action to recover his damages. Both the investigation and resulting civil action were proper, necessary, and a logical result of appellants criminal conduct. [Citation.]" (Id. at pp. 1409-1410.)
Here, the Trust incurred attorney fees in order to determine the extent of the economic loss it suffered. Specifically, the attorney fees were incurred for work done in responding to criminal discovery and preparing information for the preliminary and restitution hearings. To deny the Trust the ability to recoup these fees is contrary to the purpose of section 1202.4 in that the victim would not be fully reimbursed for its economic loss.
As to the attorney fees incurred in the final administration of Margarets estate, Montesinos could not normally be held accountable. (See § 1202.4, subd. (f).) However, because (1) the court found it could not separate the nonrecoverable economic losses from the recoverable, and (2) Montesinos did not present evidence as to apportionment, it was proper to hold Montesinos accountable for the entire $ 65,251.60. (See Fulton, supra, 109 Cal.App.4th at p. 885.)
B. Lost Wages
Montesinos contends the court abused its discretion by ordering him to pay restitution to Gregory (1) for lost wages because there was insufficient evidence that Gregory forwent appearing as an expert medical witness in other proceedings due to his involvement in Montesinoss criminal case, and (2) for hours Gregory unnecessarily spent attending the criminal proceedings which were not statutorily authorized. Montesinos requests that this court reduce both the amount used as the per hour basis for lost wages and the number of hours Gregory may claim in making the lost wage calculation. His contentions are unavailing.
Section 1202.4, subdivision (f)(3)(E) allows restitution of wages or profits lost "due to time spent as a witness or in assisting the police or prosecution." Once a victim makes a prima facie showing of an economic loss and its value, it becomes the defendants burden to show why the loss is not, in whole or in part, recoverable. (See Fulton, supra, 109 Cal.App.4th at pp. 886-887; In re S. S. (1995) 37 Cal.App.4th 543, 548; People v. Baumann (1985) 176 Cal.App.3d 67, 81-82.)
A court may look to virtually any source or type of information when determining the proper amount of owed restitution. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) Here, the court accepted as "reasonable evidence" the forensic fee schedule used by Gregorys office to estimate his lost opportunity costs—the amount of wages he lost by participating in the criminal prosecution. It accordingly ordered Montesinos to pay restitution in the amount of $25,200 to Gregory for lost wages under section 1202.4, subdivision (f)(3)(E).
It is of no moment that evidence regarding specific possible expert witness opportunities forwent by Gregory was not offered because the court did not use the fee schedule as evidence of lost wages of a testifying expert witness. Rather, the fee schedule was evidence of Gregorys lost opportunity cost of being in court rather than doing the work of an orthopedic surgeon. The court further clarified what this evidence was being offered to prove by stating that the amount of compensation will vary by occupation because "what theyre losing by participating in prosecution is different."
We conclude that the fee schedule was sufficient prima facie evidence of an appropriate lost wage rate. Montesinos failed to rebut this evidence and did not question Gregory, who was present at the hearing, about specific lost remuneration.
Montesinoss contention that the hours spent by Gregory were not statutorily authorized because they included hours where his presence as a witness, expert or otherwise, was not required is also unavailing. First, wages lost "due to time spent as a witness or in assisting the police or prosecution" are proper subjects for restitution orders. (§ 1202.4, subd. (f)(3)(E), italics added.) Gregory testified at the preliminary hearing and was a primary resource used by the prosecution throughout the criminal matter. Second, at the restitution hearing, the defense counsel failed to object to the number of hours for which the People were claiming compensation.
Failure to object to an unauthorized sentence, including an unauthorized restitution order, does not result in forfeiture of the contention. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.) However, failure to offer factually based objections concerning sentencing, including restitution orders, results in a forfeiture. (See People v. Le (1995) 39 Cal.App.4th 1518, 1523; People v. Rivera (1989) 212 Cal.App.3d 1153, 1160.) "The purpose of the waiver doctrine is to bring errors to the attention of the trial court so they may be corrected or avoided." (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468; see also In re S. S., supra, 37 Cal.App.4th at p. 548.)
Here, Montesinos did not attempt to apportion hours spent by Gregory as recoverable or nonrecoverable. Instead, defense counsel stated, "Im not in a position to dispute how many hours he spent. He says half a day here, a day there. That — we cant dispute that. So Im going to submit." Thus, any claim that the restitution order improperly contained some hours not allowed by statute is forfeited because such an error is of a factual nature and could have been corrected at the trial level. (See People v. Gibson, supra, 27 Cal.App.4th at p. 1468; In re S. S., supra, 37 Cal.App.4th at p. 548.) Forfeiture of the right to challenge factual errors is further justified by "interests of fairness to the sentencing court, fairness to the opposing party, and the needs for an orderly and efficient administration of law and judicial economy." (People v. Gibson, supra, 27 Cal.App.4th at p. 1469.)
C. Miscellaneous Restitution Orders
Montesinos contends the court abused its discretion by ordering restitution for miscellaneous items because the ordered amounts and/or the required nexus between his criminal conduct and the economic losses were not supported by substantial evidence. Specifically, he contends there was insufficient evidence to prove: (a) the Trust had suffered an economic loss by not renting out the condominium; (b) Montesinoss criminal conduct prompted the cancellation of Margarets contract with White Sands or that the Trust had suffered a loss as result of the cancellation; (c) the value of Margarets missing wedding ring set; and (d) storage, independent contractor, and additional professional fees incurred by the Trust were attributable to Montesinoss criminal conduct.
For reasons we shall explain, we modify the judgment to reflect a reduction in the overall restitution total by $10,000, the amount ordered for the replacement value of the wedding ring set, as this amount was not supported by substantial evidence. We otherwise affirm these restitution orders.
1. Fair market rent for the Point Loma condominium
Montesinos contends there was no economic loss to the Trust because there was insufficient evidence to prove that the condominium would have generated rental profits but for the rent-free residence of Montesinos and Hughes because Margaret used the condominium as a second residence for herself. This contention is unavailing.
As already discussed, section 1202.4 mandates that a victim is to be fully reimbursed "for every determined economic loss." (§ 1202.4, subd. (f)(3).) A statutorily enumerated economic loss is lost profits. (§ 1202.4, subd. (f)(3)(D).) However, "the purpose of the restitution statute is to make that victim whole, not to give a windfall." (People v. Thygesen (1999) 69 Cal.App.4th 988, 995.) In the case of identifying and calculating the amount of economic loss sustained in lost rental profits the following considerations are relevant: the loss of use of an item, how often the item had been previously rented out, and past rental profits. (Ibid.)
In January 1997, as a result of Montesinos undue influence, at a time when Margaret was not competent to make financial decisions, she purchased the Point Loma condominium and gave a one-half interest in the property. In April 1998 Montesinos entered into a settlement agreement in the conservatorship proceeding whereby he quitclaimed his interest in the condominium back to the Trust. Montesinos lived rent free at the condominium until his arrest in January 2004. Until Montesinos moved Margaret out of White Sands in February 2003, Montesinos would take her to the condominium only one to two days a week.
The People submitted a summary of the fair market rental value of the condominium for the years 1998 through 2003. The amount claimed was $109,800, which represented rent for six years and the homeowners association fees and utilities that were paid by the Trust during that time. The People submitted evidence that the fair market rental value of the condominium during that time period was $1,100 to $1,200 a month.
This evidence was sufficient to support the courts order of restitution for the rental value of the condominium. But for Montesinos undue influence over Margaret and his course of criminal conduct, she would not have purchased the condominium and would have continued living at White Sands. Therefore, if she had purchased the condominium on her own, it is reasonable to conclude that she would have done so as an investment, and that it would have been rented out. It was only through his undue influence and criminal conduct that Montesinos was able to live in the condominium rent free for six years. Moreover, the evidence supporting the amount of lost rent was sufficiently concrete and specific to support the restitution order.
2. White Sands buy-in
Montesinos contends Margarets cancellation of her White Sands contract and the corresponding medical benefits it provided was not caused by his criminal conduct. Furthermore, he contends that, assuming such a nexus was established, there was no economic loss to the Trust because the increased medical costs were more than offset by the lack of a continued obligation to pay White Sands.
Substantial evidence shows there was a nexus between Montesinoss criminal conduct and the cancellation of the White Sands contract. Montesinos ingratiated himself into Margarets life using deceit and manipulation. Margaret used a significant amount of her assets to purchase a condominium, a one-half interest in which she gave to Montesinos, who encouraged her to think of him as her son. Montesinos then facilitated Margarets visits to the condominium, and Margaret eventually expressed a desire to live at the condominium with him. The considerable financial benefits provided by the contract and Margarets declining health at the time of cancellation make it highly unlikely that the contract would have been cancelled absent Montesinoss criminal conduct.
A court can only order restitution for an economic loss actually incurred by a victim. (§ 1202.4, subd. (f).) Here, the sole loss to the Trust was the additional monies paid for Margarets medical care. While the court took the matter of the buy-in under submission and only issued, without explanation, the order for $35,000 in restitution after the close of the restitution hearing, the record does reflect that the court understood the bounds of its discretion in this matter. The court stated the issue was "about the extra amount she paid for care," and asked for a figure that represented that amount so as to avoid speculation.
Margaret died before she ran out of funds, so there is no need to determine a value for the loss of her right to receive medical care from White Sands after she was insolvent.
A restitution order "must be affirmed if there is a factual and rational basis for the amount." (Akins, supra, 128 Cal.App.4th at p. 1382.) Here, Margaret paid $ 50,465.78 for medical care in the nine months following Montesinoss arrest. At the time of cancellation Margaret was paying White Sands $1,245 a month, which over a period of nine months amounts to a cost of $11,205. Thus, after the offset, Margaret incurred an additional $39,258.78 in medical bills due to the cancellation of the contract.
That the court ordered the $35,000 in restitution requested by the People when there was a rational basis for awarding a greater amount in restitution does not amount to an abuse of discretion. "No abuse of discretion is shown simply because the order does not reflect the exact amount of the loss." (Akins, supra, 128 Cal.App.4th at p. 1382.)
Montesinos claims the Trust saved more than $ 11,205 because this amount does not take into account the 12 months Margaret lived at the condominium without receiving medical care. However, as Margarets payments to White Sands provided medical care in addition to shelter, we will not give Montesinos credit for this extended time. Furthermore, even if we found Montesinoss method persuasive, "we may reverse the trial courts order only if we determine that the method the court adopted was arbitrary, capricious, or irrational." (Akins, supra, 128 Cal.App.4th at p. 1389.)
Here, we cannot conclude that the court abused its discretion because the record contains evidence supporting an economic loss of at least $35,000 in lost medical benefits emanating from the cancellation of the contract and Montesinoss criminal conduct. We therefore affirm this restitution order.
3. Wedding ring set
Montesinos contends the court abused its discretion by ordering restitution to the Trust for the value of a wedding ring set when substantial evidence did not support a finding that the set was worth $10,000. We find merit in this contention and modify the judgment accordingly.
Section 1202.4, subdivision (f)(3)(A) specifically permits restitution for the replacement value of stolen property. The court ordered Montesinos to pay restitution in the amount of $10,000 to the Trust for a wedding ring set owned by Margaret that could not be found after her death. The replacement value was based on testimony of Gregory, a nonowner with no stated expertise in jewelry appraisal. While a nonexpert owner may testify to the value of his personal property (see In re S. S., supra, 37 Cal.App.4th at p. 547), the value of the set was not established by testimony of either an expert or an owner. Thus, Gregorys testimony did not constitute substantial evidence as to the replacement value of the set. "If there is no substantial evidence to support the award, and assuming no other rational explanation, the trial court will have obviously abused its discretion." (People v. Thygesen, supra, 69 Cal.App.4th at p. 993.) Here, the People did not make a prima facie showing of the economic loss it claims the Trust sustained. As the loss was not based on substantial evidence, we conclude the court abused its discretion by ordering restitution for this loss.
4. Storage, independent contractor, and additional professional fees
Montesinos contends the court abused its discretion by ordering him to pay restitution to the Trust in the amount of $14,261.59 for storage fees and $8,447.43 for independent contractor fees and additional professional fees because there was insufficient evidence to show that these fees were incurred as a result of his criminal conduct. We reject this contention because section 1202.4, subdivision (f)(3) mandates restitution for "every determined economic loss incurred as the result of the defendants criminal conduct" and, here, the People made a prima facie showing that these fees were incurred, and a nexus existed between the economic losses and Montesinoss criminal conduct.
The People presented evidence of storage, independent contractor, and additional professional fees actually incurred by the Trust. The People established the nexus between Montesinoss criminal conduct and the storage fees by showing that: (1) Margarets property, which would have been in her White Sands studio had Montesinos not unduly influenced her to move into the condominium, was placed in storage after police arrested Montesinos for passport fraud in 2004, and Margaret had to move into skilled nursing facilities because of her declining health; (2) after Margarets death, the property remained in storage because Gregory contested the will and the trustee could not distribute the stored property to the designated beneficiaries, including Montesinos; (3) the will contest was largely motivated by the inclusion of Montesinos as a substantial beneficiary; and (4) the trustees legal representative stated at the restitution hearing that "all of the storage incurred and fees incurred were because of the crime."
The People also established the nexus between Montesinoss criminal conduct and the independent contractor and additional professional fees by demonstrating that Montesinos unduly influenced Margaret to purchase the condominium. Therefore, fees incurred after Montesinoss 2004 arrest to move Margarets possessions into storage, to inventory those possessions, and to clean the condominium could be considered the "proper, necessary, and logical result" of Montesinoss criminal conduct. (See Lyon, supra, 49 Cal.App.4th at p. 1525.)
While the trustee had the obligation to transfer, clean, inventory, and store Margarets possessions, it was rational to believe that both the amount of work as well as the cost involved in the fulfillment of this obligation was greatly increased, as evidenced above, by Montesinoss criminal conduct. The trial court has broad discretion in ordering restitution; its orders are not limited "only to exactly provable losses," and we may not overturn a restitution order if there is "a rational basis for the trial courts determination." (People v. Balestra, supra, 76 Cal.App.4th at p. 64.)
Furthermore, because Montesinos did not attempt to apportion the cost of these fees between those caused by his criminal conduct and those that would have been incurred regardless of that conduct, he can be held accountable for the full amount of the fees. (See Fulton, supra, 109 Cal.App.4th at p. 885.) Accordingly, we conclude the court did not abuse its discretion in ordering restitution for the full cost of the storage, independent contractor, and additional professional fees.
DISPOSITION
The judgment is modified to strike the restitution award in the amount of $10,000 for the missing wedding ring set. As modified, the judgment is affirmed.
We concur:
HALLER, J.
IRION, J.