Opinion
H042628
05-12-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL SANCHEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CC828826)
Defendant Daniel Sanchez pleaded guilty to one count of conspiracy to commit embezzlement (Pen. Code, §§ 182, subd. (a)(1); 484, 487, subd. (b)(3)) and one count of commercial bribery by an employee (Pen. Code, § 641.3). He also admitted an enhancement allegation that the victim's loss exceeded $3,200,000.00 (Pen. Code, § 12022.6, subd. (a)(4)). The court granted him probation, which included a 138-day county jail term, and ordered that he pay victim restitution in the amount of $40,000.00. Defendant appeals the restitution order, contending the amount imposed is not supported by an adequate factual basis. For the reasons explained, we find no error and will affirm the order.
I. BACKGROUND
Defendant's embezzlement and bribery charges arose from his role in a scheme that defrauded a landfill out of more than $10 million in dumping fees. Defendant worked at the landfill as a heavy equipment operator, burying garbage. In 2006, he began accepting bribes from the owner of a company that regularly dumped waste there. He was paid the bribes in exchange for "looking the other way" when trucks affiliated with that company arrived and dumped their loads. Several other landfill employees were also bribed to allow those trucks to dump for either a lesser fee or no fee at all.
We take the factual background from the evidence presented at the restitution hearing and from information contained in the probation report, which the court is entitled to consider in making a restitution order. (People v. Foster (1993) 14 Cal.App.4th 939, 947.)
Records revealed that defendant had been paid $30,400.00 in bribes by check. He also admitted receiving regular cash payments that he would split with several other employees. Between January 2006 and May 2008, the scheme allowed the owner of the dumping company to avoid paying millions of dollars in fees to the landfill.
Defendant was arrested and charged in December 2008, along with five others (the dumping company owner who spearheaded the scheme and four landfill employees who also took bribes). He pleaded guilty in March 2009 under a plea agreement providing for a prison term of no more than 32 months. Sentencing did not occur until September 2014, at which time the court suspended imposition of sentence, placed defendant on probation (including a 138-day county jail term, deemed served based on presentence custody credits), and entered a general order of restitution, reserving jurisdiction to determine the amount of victim restitution at a later date.
At sentencing, the court also struck defendant's prior strike conviction from 32 years earlier under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
In April 2015, the court held a hearing to determine the amount of restitution owed by defendant and his codefendants. The court received documentary evidence, including the detailed report of a consultant hired by the landfill which estimated the total loss to be $13,792,789.00. Two expert witnesses testified on behalf of one of the codefendants (the manager of the landfill) and questioned the accuracy of the consultant's methodology. Defendant presented no evidence, but argued that due to his limited role in the scheme he should not be held jointly and severally liable for the full amount of the loss. Defendant requested that the court "assess a reasonable restitution amount" against him, no greater than $30,400.00 (the amount he was shown to have received by check).
The trial court issued an 11-page restitution order setting the total amount of victim restitution and the amount owed by each codefendant. The total restitution ordered was $10,300,000.00. The owner of the dumping company was ordered to pay the full amount of $10,300,000.00. The highest ranking manager of the landfill was ordered to pay $1,000,000.00; another manager $70,000.00; and a lower level employee $60,000.00. Defendant was ordered to pay $40,000.00.
The court indicated that the amounts of restitution as against the landfill employees were calculated based on "the amount in bribes that each defendant received for their part in the bribery/fraud scheme and the relative positions occupied by the defendants as employees." Regarding the $40,000.00 that is the subject of this appeal, the court noted it was calculated "based on the record of payments made to [defendant] by check ($30,400.00) and including an additional amount to account for unrecorded cash payments from 2006-2008."
II. DISCUSSION
A. STANDARD OF REVIEW AND APPLICABLE LAW
We review a victim restitution order for abuse of discretion. (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319.) An abuse of discretion is an "[a]ction that transgresses the confines of the applicable principles of law." (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393.) To determine whether the trial court abused its discretion in this case, we look to the principles of law governing victim restitution orders.
Where, as here, a defendant is granted probation, two statutes authorize an order of restitution: Penal Code sections 1203.1, subdivision (a)(3) and 1202.4 (unspecified statutory references are to this code). Section 1203.1 allows the court to order victim restitution in "proper cases" as a condition of probation. Section 1202.4 stems from the state constitutional mandate that all persons who suffer losses from criminal activity are entitled to restitution (Cal. Const., art. I, § 28, subd. (b)(13)(A)) and requires the court to order victim restitution in every criminal case where the victim has suffered an economic loss.
"In both sections 1203.1 and 1202.4, restitution serves the purposes of both criminal rehabilitation and victim compensation." (People v. Anderson (2010) 50 Cal.4th 19, 29.) "[T]he 'primary purpose of victim restitution is to fully reimburse the victim for his or her economic losses.' " (People v. Taylor (2011) 197 Cal.App.4th 757, 763 [original italics].) But "aside from making the victim whole, restitution serves valid punitive, deterrent, and rehabilitative objectives by requiring the defendant to return his ill-gotten gains and helping him appreciate the harm done to the victim." (People v. Cookson (1991) 54 Cal.3d 1091, 1097; see also People v. Bernal (2002) 101 Cal.App.4th 155, 162 [restitution orders have as their goal economic compensation for the victim, rehabilitation of the defendant, and deterrence of defendant and others from committing future offenses].)
"In determining the amount of restitution, all that is required is that the trial court 'use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' " (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) " 'There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action.' " (People v. Anderson, supra, 50 Cal.4th at p. 27.) So long as the court uses a " 'factual and rational basis' " to determine the amount of restitution, no abuse of discretion will be found. (People v. Taylor, supra, 197 Cal.App.4th at p. 761.)
Trial courts have the most latitude in imposing restitution under section 1203.1, because restitution imposed as a condition of probation need only be " ' "reasonably related to the crime of which the defendant was convicted or to future criminality," ' " and does not necessarily need to reflect a loss caused by the criminal conduct. (People v. Walker (2014) 231 Cal.App.4th 1270, 1274.) Restitution imposed under section 1202.4, on the other hand, is limited by the statutory language to a victim's losses arising out of the criminal conduct that is the basis for the conviction. (Ibid.) Both statutes apply here. The trial court ordered restitution as a condition of defendant's probation (as a general order of restitution, with the amount to be determined), and also, as required, ordered restitution under section 1202.4 because the victim suffered an economic loss.
Defendant argues that since the court referenced only section 1202.4 in the restitution order, that is the applicable statute and the court's discretion was more limited than it would be under section 1203.1. But that argument ignores the general order of restitution made as a condition of probation at the time of sentencing. Further, whether section 1203.1 applies depends on whether a defendant is granted probation. (People v. Walker, supra, 231 Cal.App.4th at p 1274 ["The scope of the court's duty—and power—to order restitution turns on whether the court imposes judgment or instead places the defendant on probation."].) Defendant was granted probation and the court therefore retained the discretion conferred by section 1203.1 when ordering restitution. In any event, it makes no difference which statute is applied because, as we will discuss, we find no abuse of discretion under either section 1203.1 or section 1202.4.
B. NO ABUSE OF DISCRETION IN IMPOSING RESTITUTION OF $40,000.00
Defendant contends the court abused its discretion by ordering him to pay $40,000.00 in victim restitution because that amount is not supported by a sufficient factual or rational basis. The trial court based the amount of restitution to be paid by defendant on the amount he personally received in bribes. In so doing, the court employed the concept of restitution in accordance with its traditional measure in civil cases (the amount of the defendant's gain), as opposed to the measure most often contemplated in criminal restitution cases (the amount of the victim's loss). Defendant concedes this was a rational method to calculate the restitution owed by him individually, and for good reason, since the most obvious alternative—joint and several liability for the entire loss—would leave him far worse off.
Defendant does not argue the trial court was incorrect in determining the total amount of the victim's loss to be $10,300,000.00. Since the purpose of restitution is to compensate victims for their losses and a court has the authority to make the restitution obligation of codefendants joint and several (People v. Neely (2009) 176 Cal.App.4th 787, 800), it would have been within the court's discretion to order defendant to pay restitution in the full amount of that loss. Defendant therefore seeks to persuade us that although the court could have properly imposed restitution of over $10,000,000.00, it was an abuse of discretion to impose restitution of $40,000.00. --------
Despite conceding the propriety of the calculation method, defendant asserts that $40,000.00 is excessive. He maintains there is insufficient supporting evidence in the record, pointing to statements he made to investigators that he would always split the money with others and statements of other employees indicating they received money from him. He also argues the court's imposition of an amount to reflect "unrecorded cash payments" was arbitrary because there is no evidence showing how much total cash he received.
We are not persuaded by defendant's arguments. In determining the appropriate amount of restitution, the trial court considered a lengthy written report detailing the victim's loss, heard testimony from experts critical of that report during a full day hearing, and received briefing from the parties. It then issued an order explaining the reasoning it used to arrive at the total restitution amount and the apportionment among the various codefendants. We find no error in the order. The trial court was not required to credit defendant's explanation that he always shared the money he received with others. Nor was it required to determine the exact amount of cash payments, or to make an order reflecting the amount of damages that might be recoverable in a civil action. (People v. Anderson, supra, 50 Cal.4th at p. 27.) Defendant's admission that he received $1,500.00 per month, and that he was "normally" paid in cash (with records showing he received over $30,000.00 in checks alone) is sufficient to provide a rational factual basis for the $40,000.00 in restitution.
The trial court was vested with discretion to use a rational method of determining restitution to reasonably make the victim whole. Ordering the full amount of the victim's loss to be paid by the most culpable party and imposing lesser amounts against the other codefendants according to the benefit each received and the level of participation in the criminal operation was a rational method of compensating the victim. The $40,000.00 imposed against defendant has adequate factual support, and using defendant's gain rather than the victim's loss as the method to calculate restitution did not prejudice defendant—it greatly benefited him.
III. DISPOSITION
The order is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Premo, Acting P. J. /s/_________ Elia, J.