Opinion
B206199
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. TERRI ROMINE, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Sharlene A. Honnaka, Deputy Attorney General, for Plaintiff and Respondent.
Not to be Published
INTRODUCTION
Defendant Terri Romine (defendant) pleaded guilty to two counts of grand theft by embezzlement. (Pen. Code, § 487, subd. (a).) Imposition of sentence was suspended and defendant was granted three years probation. The trial court ordered pursuant to section 1202.4, subdivision (f) that defendant pay $110,451.51 in restitution to one of her victims. On appeal, defendant contends that (1) the trial court abused its discretion by failing to give her credit for $70,000 she previously had paid her victim; (2) the trial court improperly delegated to the probation officer the responsibility to determine whether she was due offsets against the restitution amount; and (3) she was denied due process at the restitution hearing. We reject the contentions and therefore affirm.
All statutory references are to the Penal Code.
BACKGROUND
The facts relating to defendants crimes are derived from the probation officers report.
Attorney Barbara Frantz hired defendant as a legal secretary in 1992 and employed her in that capacity for approximately seven years. Frantz sold her practice in 1999 because of her husbands illness. Frantz thereafter engaged defendant as a financial assistant who took care of paying Frantzs bills. Defendant rendered monthly reports to Frantz, and Frantz was satisfied with defendants performance.
After Frantzs husband died, defendant began to make up excuses why she could not provide monthly reports. On October 31, 2002, Frantz attempted to trade in her car for a newer model. When the dealership obtained a credit report, Frantz learned that she had ten credit cards in her name that were over their respective credit limits. Frantz hired a private investigator who discovered that defendant had opened and used lines of credit in Frantzs name; had written checks to herself from Frantzs accounts; and falsely had told Frantz that she had paid Frantzs estimated income taxes.
At some point prior to June 2007, defendant became the debtor in Chapter 7 bankruptcy proceedings in the United States Bankruptcy Court for the Central District of California. Frantz instituted adversary proceedings against defendant in the bankruptcy court. On June 8, 2007, defendant and Frantz settled the adversary proceedings (the bankruptcy settlement). Defendant paid Frantz $ 70,000 by cashiers check in "full and complete satisfaction of all claims, including all restitution claims," by Frantz against defendant.
On June 13, 2007—after the settlement in the bankruptcy action—the prosecutor sent a letter to defense counsel setting forth Frantzs claim to restitution (the Claim Letter). The Claim Letter set forth a claim in the amount of $110,451.51, consisting of $49,838.91 embezzled by defendant through unauthorized checks drawn on Frantzs accounts; $12,473.69 in federal and state tax penalties and interest; $5,866.41 in unauthorized charges on Frantzs American Express card; and $42,272.50 in Frantzs lost wages. The prosecutor included documentation substantiating the claimed losses.
The copy of the Claim Letter included in the record on appeal appears to be missing one or more pages, and it does not include the substantiating documentation provided by the prosecutor.
In July 2007, an information was filed charging defendant with four counts of grand theft by embezzlement. (§ 487, subd. (a).) Count 1 alleged that, between March 2001 and October 2002, defendant had embezzled funds in excess of $50,000 (§ 12022.6, subd. (a)(1)) from Frantz. Counts 2 through 4 alleged acts of embezzlement in October 2003 against a second victim, International Virtual Assistants Association.
In October 2007, defendant pleaded guilty to counts 1 and 2 and admitted the section 12022.6 allegation in return for the dismissal of counts 3 and 4. There was no promise as to sentence, and defendant gave a Harvey waiver allowing the trial court to consider dismissed charges when sentencing defendant. Defendant understood and agreed that one condition of her plea was that the trial court would order her "to pay actual restitution to the victims in this case. The amount of restitution [would] be determined at a restitution hearing."
Although the reporters transcript establishes that defendant pleaded guilty to counts 1 and 2, the trial courts minute orders state that defendant pleaded nolo contendere to count 1, and that counts 2, 3 and 4 were dismissed pursuant to section 1385. We order the trial courts minute orders corrected accordingly.
People v. Harvey (1979) 25 Cal.3d 754.
Prior to sentencing, defendant filed a brief asserting her position that the bankruptcy settlement satisfied defendants obligation to pay restitution to Frantz. Defendant contended in the alternative that, even if the bankruptcy settlement did not impact the trial courts authority to order restitution, the prosecutors calculation was erroneous because defendant was due credits for amounts previously paid and because Frantz was not entitled under section 1202.4 to restitution for her lost wages.
At the sentencing and restitution hearing, the prosecutor argued that the bankruptcy settlement did not affect the trial courts authority to order restitution under section 1202.4. The prosecutor also argued that defendant was not entitled to many of the offsets she claimed because Frantz had not included in her restitution claim those losses that defendant already had recompensed. With respect to the bankruptcy settlement, however, the prosecutor stated, "[W]e concede that [defendant] is due a credit or an offset for the $70,000 which she has, in fact, paid to Ms. Frantz."
The trial court stated that whatever defendant already had paid could be discussed at a later time. The issue before the trial court was "a global order of what restitution is owing." The trial court asked Frantz, who was present, to explain how she had arrived at her claim for lost wages. Frantz explained how she did so. Frantz further explained that the $ 70,000 bankruptcy settlement was to pay Frantzs "tax debt," "plus [Frantzs] attorneys fees for that tax situation." The $ 110,000 in restitution she was claiming before the trial court was "for stuff completely different . . . ."
The trial court suspended imposition of sentence and placed defendant on three years formal probation, on the condition (among others) that defendant serve 180 days in county jail. The trial court ordered defendant to "pay restitution to the victim; that amount and manner to be determined by the probation officer. The actual I had remaining to be determined by the amount [sic] the court is satisfied $110,451.51." The trial court imposed a $200 restitution fine; a $200 probation revocation restitution fine, stayed; and a $20 court security fee. Defendant timely appealed.
Defendant obtained a certificate of probable cause, although no certificate was required. (§ 1237.5; Cal. Rules of Ct., rule 8.304(b)(4).)
DISCUSSION
A. Applicable Principles and Standard of Review
The California Constitution directs the Legislature to adopt laws implementing the "right" of "all persons who suffer losses as a result of criminal activity" to receive "restitution from the persons convicted of the crimes," and ensuring that "restitution shall be ordered" from convicted criminals in every case in which a crime victim suffers a loss "unless compelling and extraordinary reasons exist to the contrary." (Cal. Const., art. I, § 28, subd. (b); see People v. Hamilton (2003) 114 Cal.App.4th 932, 939.) The Legislature passed section 1202.4, among other statutes, to implement that mandate. (See People v. Giordano (2007) 42 Cal.4th 644, 652-653 (Giordano ).) The version of section 1202.4 that governs here provided that "[i]n 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 . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court," unless the trial court "finds compelling and extraordinary reasons for not doing so, and states them on the record." (§ 1202.4, subd. (f).) A defendant "has the right to a hearing before a judge to dispute the determination of the amount of restitution," and the trial court "may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant." (§ 1202.4, subd. (f)(1).) "To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and 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 . . . ." (§ 1202.4, subd. (f)(3).) "`[R]estitution ensures "`that amends . . . be made to society for the breach of the law," enables "people who suffer loss as a result of criminal activity [to] be compensated for those losses," and acts "as a `deterrent to future criminality . . . and `to rehabilitate the criminal." [Citation.]" (People v. Woods, supra, 161 Cal.App.4th at p. 1053.)
A trial court also has broad discretion pursuant to § 1203.1, subdivision (b) to require that a defendant who is granted probation pay restitution as a condition of probation. (See Giordano, supra, 42 Cal.4th at p. 663, fn. 7; People v. Woods (2008) 161 Cal.App.4th 1045, 1050.) The trial court in this case, however, ordered restitution only pursuant to section 1202.4. Section 1202.4, subdivision (m) provides that "[i]n every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation."
This case is governed by the version of section 1202.4 in effect when defendant committed her crimes between March 2001 and October 2002. (People v. Hamilton, supra, 114 Cal.App.4th at p. 939, fn. 5; People v. Bernal (2002) 101 Cal.App.4th 155, 161, fn. 4.) All references to section 1202.4 are to that version. The Legislature has amended section 1202.4 several times since, but not in any respect material to this case. (See Stats. 2004, c. 223 (S.B. 631), § 2; Stats. 2005, c. 238 (S.B. 972), § 1; Stats. 2005, c. 240 (A.B. 22), § 10.5; Stats. 2007, c. 302 (S.B. 425), § 14; see generally, Giordano, supra, 42 Cal.4th at pp. 651-654 [surveying history of § 1202.4].)
We review the trial courts restitution order for abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 663.) "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 . . . victims economic loss. To facilitate appellate review of the trial courts restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered." (Id. at pp. 663-664.) A restitution order founded on a demonstrable error of law constitutes an abuse of discretion. (People v. Jennings (2005) 128 Cal.App.4th 42, 49.)
B. Substantial Evidence Supports the Restitution Order
Defendant contends that the trial court abused its discretion by refusing to give her an offset of $70,000 against the restitution award for the amount she paid to Frantz pursuant to the bankruptcy settlement. We disagree.
"`"`"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.]" (People v. Prosser (2007) 157 Cal.App.4th 682, 686.) "`In reviewing the sufficiency of the evidence, the `"power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the trial courts findings." [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] "If the circumstances reasonably justify the [trial courts] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We 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. [Citation.] [Citation.]" (Id. at pp. 686-687.)
Generally, "when the victim has obtained a settlement payment from a . . . defendant for civil liability, the amount of the restitution order in a criminal action must be offset by money paid to the victim by the [defendant]." (People v. Short (2008) 160 Cal.App.4th 899, 903; see also People v. Jennings, supra, 128 Cal.App.4th at p. 55.) An offset is permitted, however, only to the extent that the civil settlement and the restitution order constitute compensation for the same items of loss. (People v. Jennings, supra, 128 Cal.App.4th at p. 58; see also People v. Bernal, supra, 101 Cal.App.4th at p. 168 [defendant entitled to offset for payments "to the extent that those payments are for items of loss included in the restitution order"].)
In this case, the prosecutor set forth the items of loss in the Claim Letter and provided documentation to substantiate those losses. Frantz—who executed the bankruptcy settlement and, it appears, was primarily responsible for preparing the restitution claim—informed the trial court that the bankruptcy settlement was to compensate her for $40,000 worth of "tax debt" and $30,000 in attorneys fees she spent to prosecute the adversary proceedings, and that the restitution claim was for items of loss that were "completely different . . . ."
See footnote 3 ante.
The record does not specify what the "tax debt" referred to by Frantz includes.
"[I]t is well settled that `statements by the victims of the crimes about the value of the property stolen constitute "prima facie evidence of value for purposes of restitution." [Citations.] [Citations.]" (People v. Prosser, supra, 157 Cal.App.4th at pp. 690-691; see also People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [the trial court may accept a property owners statement about the value of stolen or damaged property].) Similarly, Frantzs statement to the trial court that the bankruptcy settlement and the restitution claim covered items of loss that were "completely different" was substantial evidence to support a conclusion that no offset for the bankruptcy settlement was required.
Once the victim has made a prima facie showing of loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543; People v. Prosser, supra, 157 Cal.App.4th at p. 691.) Defendant offered no affirmative evidence to establish that the bankruptcy settlement and the restitution claim covered the same items of loss. Frantz was present in court and, according to the prosecutor, was "prepared to explain to the court all of the elements of the loss that comprise the amount that we are seeking." Frantz had with her, according to a statement by the trial court, several three-ring binders of documents and "quite a few memo pads" to support the restitution claim. Frantz was examined on the record by the trial court. Defendant, it appears, conducted discovery prior to the hearing related to the restitution claim. Yet defendant made no request to cross examine Frantz to challenge her claim, or to review her documentation, or to mark any of Frantzs documents as exhibits. If defendant was surprised by Frantzs statement that her restitution claim was for losses "completely different" than those compensated through the settlement, it was incumbent on defendant to request a continuance to permit her to challenge that statement. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1545; People v. Prosser, supra, 157 Cal.App.4th at p. 692.) Defendant did not do so. Accordingly, defendant failed to establish that she was entitled to the offset.
Defendant argues that the prosecutors concession at the restitution hearing that defendant was entitled to a $70,000 offset demonstrated that the prosecutor believed that Frantzs claim was "unmeritorious" and the prosecutor had "fully and finally decided the $70,000 was a valid offset." The record does not support defendants assertions concerning the prosecutors state of mind. There is no indication that the prosecutor had any involvement in the bankruptcy settlement, and as stated, it appears that Frantz was primarily responsible for preparing the restitution claim. Reading the prosecutors concession in context, it appears more likely that the prosecutor believed when she made her concession that Frantzs restitution claim and the bankruptcy settlement concerned the same losses. The evidence later supplied by Frantz was to the contrary. The prosecutor did not reiterate her concession or seek to withdraw or reduce the restitution claim by the amount of the offset after Frantz made her statement to the trial court, although the prosecutor had the opportunity to do so. In contrast, the prosecutor did withdraw the restitution claim with respect to International Virtual Assistants Association because she believed the People could not prove any loss. We find no abuse of discretion in the amount of the restitution order.
C. No Improper Delegation to Probation Officer
During the restitution hearing, the trial court stated that its "plan [was] to make the entire order. Whatever has been offset, thats something you can discuss later. I need to make a global order of what restitution is owing. She has paid part of that, thats all well and good, but I have to come up with an order." The trial court further explained, "I have to come up with a total order of restitution. [¶] If, just as an example, these figures were correct the way they are, the order would be that she owes 110,000 and change, right, just the way assessed there. What she has already paid we can discuss after that. But I still have to come up with an order, what it is that she owes to the victim." In making its restitution order, the trial court stated, "She needs to pay restitution to the victim; that amount and manner to be determined by the probation officer. The actual I had remaining to be determined by the amount [sic] the court is satisfied $110,451.51." Defendant argues that the trial court thus improperly delegated to the probation officer the determination of whether she was entitled to offsets, rather than exercising its own discretion to determine whether the offsets were warranted.
The trial courts minute order is inconsistent with its oral pronouncement. The minute order states, "Defendant is to make restitution to the victim pursuant to Penal Code section 1202.4(f), in the amount of$ [sic] 110,451.51 to Barbara Frantz." The minute order thus does not reflect the trial courts delegation to the probation officer of the authority to determine the "amount and manner" of the restitution. "Where there is a discrepancy between the oral pronouncement of judgment and the minute order . . ., the oral pronouncement controls." (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; accord, People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) We order the trial courts minute order corrected accordingly.
Defendant did not object to the restitution order on this basis in the trial court. She thus forfeited any contention that the trial court improperly delegated to the probation officer the determination of the amount of restitution she owed. (People v. Scott (1994) 9 Cal.4th 331, 352, fn. 15 ["`When a defendant does not object to allowing the probation officer to determine the amount of restitution, the propriety of such an order has been waived for appellate purposes"], citing People v. Keele (1986) 178 Cal.App.3d 701, 707-708.)
In any event, we perceive no error. Section 1202.4, subdivision (f) provides for situations in which it may be impractical or impossible for a sentencing court to fashion a comprehensive restitution order. Subdivision (f) provides, "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." (Italics added.) Section 1202.4 thus authorizes a trial court in appropriate cases to delegate to the probation officer or another agency the determination of the amount of restitution owed by a defendant. (People v. Bernal, supra, 101 Cal.App.4th at p. 164; People v. Lunsford (1998) 67 Cal.App.4th 901, 903; see Levenson, Levenson on California Criminal Procedure (2007-2008 ed.) § 25:96, pp. 1211-1212; 3 Witkin & Epstein, California Criminal Law (3d ed. (2000) Punishment, § 104, p. 162.) A defendant is entitled to judicial review of the agencys determination. (§ 1202.4, subd. (f)(1); People v. Lunsford, supra, 67 Cal.App.4th at p. 904.)
We cannot say the trial court abused its discretion in determining that this was an appropriate case to delegate that determination. Defendants position in the trial court was that she was entitled to offsets with respect to Frantz totaling nearly $92,000. She submitted copies of numerous checks and money orders—including checks payable to persons and entities other than Frantz and six money orders with no designated payee—to support her claim. Other than the $70,000 paid by defendant pursuant to the bankruptcy settlement, the prosecutor and Frantz both disputed defendants offset claims. Moreover, as noted above, Frantz informed the trial court that defendant was entitled to no offsets because she had included in her restitution claim only losses for which she had not been compensated. Resolving defendants offset claims thus would require a reconciliation between the items of loss claimed by Frantz and the payments made by defendant. Furthermore, because defendant failed to request a continuance or to produce any evidence to dispute Frantzs statement, the trial court reasonably could have rejected all of defendants offset claims on the ground that defendant failed to carry her burden of proof. The trial courts decision to delegate the final determination to the probation officer was thus favorable to defendant. The trial court did not abuse its discretion.
Defendant argues, in essence, that section 1202.4, subdivision (f) permits a trial court to delegate the determination of the amount of restitution only when the loss claimed by the victim includes amounts that cannot be determined at the time of sentencing, such as future medical expenses. The statute does not so state, nor has it been so construed. For example, in People v. Lunsford, supra, 67 Cal.App.4th 901, upon which defendant relies, a murderer was ordered to pay the medical bills and funeral expenses of his murder victim. (Id. at p. 902.) The trial court delegated the determination of the amount of those expenses to the Office of Revenue Reimbursement, subject to the defendants right to judicial review of that determination. The appellate court held that this was a proper delegation under section 1202.4, subdivision (f). (Id. at pp. 903-904.) It seems clear that, at the time the murderer in Lunsford was sentenced, the murder victim would be incurring no future medical or funeral expenses. Those expenses were thus no less susceptible of proof at the restitution hearing in Lunsford than the offsets claimed by defendant in this case. Lunsford does not assist defendant.
We deny defendants request to take judicial notice of a Probation Department "Notice Regarding Financial Responsibility" issued subsequent to the order on appeal. (See People v. Leonard (2007) 40 Cal.4th 1370, 1393 ["On appeal . . . we review the appellate record for error, without considering matters not presented to the trial court"].) To the extent defendant contends the probation officer failed to execute or erroneously executed the trial courts order, her remedy is to seek judicial review of the probation officers action. (§ 1202.4, subd. (f)(1).)
D. Defendant Was Not Denied Due Process
Defendant argues that she was denied due process at the restitution hearing because the prosecutors Claim Letter did not give her notice that the amount of restitution claimed would not be offset by the $70,000 bankruptcy settlement. We disagree.
"`The scope of a criminal defendants due process rights at a hearing to determine the amount of restitution is very limited: "`A defendants due process rights are protected when [he or she has] notice of the amount of restitution claimed . . ., and . . . has an opportunity to challenge the figures . . . at the sentencing hearing." [Citations.] [Citations.] `"`Due process does not require a judge to draw sentencing information through the narrow net of courtroom evidence rules. . . [. S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source . . . whence it comes. [Citation.]" [Citation.] [Citation.]" (People v. Prosser, supra, 157 Cal.App.4th at p. 692.)
Defendant notes in passing that in Giordano, supra, 42 Cal.4th 644, the California Supreme Court declined to address whether the decisions in Cunningham v. California (2007) 549 U.S. 270, People v. Black (2007) 41 Cal.4th 799, and People v. Sandoval (2007) 41 Cal.4th 852, affected the settled rule "that restitution hearings require fewer due process protections than civil hearings or criminal hearings of guilt." (Giordano, supra, 42 Cal.4th at p. 662, fn. 6.) Defendants restitution hearing was conducted after the decision in Giordano. Defendant did not object at the restitution hearing that she was denied her rights under Cunningham or its progeny, nor does she articulate on appeal how the holdings in those cases apply to restitution hearings or how her constitutional rights were violated. Merely noting that a potential issue might exist is not sufficient to raise the issue on appeal. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695, fn. 9.) The issue has been forfeited.
Defendant had both notice of the amount of Frantzs restitution claim and the opportunity to challenge that claim. The Claim Letter set forth an itemized list of the losses Frantz claimed and included documentation substantiating those claims. The Claim Letter was sent after the bankruptcy settlement, and it does not state that the amounts claimed were to be offset by the $70,000 paid by defendant pursuant to the bankruptcy settlement. Defendant filed written opposition to the Claim Letter and her defense attorney argued her position orally to the trial court. There is no indication in the record that defendant was promised prior to the hearing that that she would receive a $70,000 offset against the restitution award; to the contrary, she expressly argued to the trial court that she was entitled to the offset.
Moreover, as noted above, defendant bore the burden to establish that she was entitled to the offset against Frantzs restitution claim. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1545; People v. Prosser, supra, 157 Cal.App.4th at p. 692.) Frantz was present in court at the restitution hearing with documentation substantiating her losses, and she was examined on the record by the trial court. Defendant made no request to examine Frantz or to review her documentation, nor did defendant request a continuance to permit her to challenge Frantzs statement that she sought restitution for losses "completely different" than those compensated by the bankruptcy settlement. Defendant was not denied due process.
DISPOSITION
We order the trial court minute orders dated October 17, 2007 and December 17, 2007 corrected to reflect that defendant pleaded guilty to counts 1 and 2. We also order the trial courts minute order dated December 17, 2007 corrected to reflect that defendant is to make restitution to victim Barbara Frantz in an amount and in a manner to be determined by the probation officer, not to exceed the victims substantiated loss of $110,451.51 and subject to judicial review. In all other respects, the judgment is affirmed.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.