Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. BA320457, Curtis B. Rappe, Judge.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant John Thymes.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Shirley Thymes.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Appellants John Thymes (John) and Shirley Thymes (Shirley) appeal from their judgments of convictions relating to defrauding various public agencies. Following a trial by jury, John was convicted of multiple counts of grand theft (Pen. Code, § 487, subd. (a)) and perjury by declaration (§ 118), and was sentenced to a total of nine years, four months in state prison. Shirley pled no contest to one count of grand theft and one count of perjury by declaration, and was sentenced to a 56-month suspended sentence and placed on formal probation for five years. John contends the trial court committed reversible error when it denied a juror’s request to be excused from deliberations. He also contends the crime prevention fine of $140 imposed by the trial court should be reduced to $10. Shirley contends the trial court abused its discretion by ordering her to pay restitution of $27,189.96.
Because appellants, codefendants, witnesses, and third parties share the same last name, we will refer to these individuals by their first names.
Unless otherwise noted, all statutory references shall be to the Penal Code.
We affirm with directions to the trial court to correct John’s abstract of judgment.
The underlying proceedings involved four defendants and a 30-day grand jury indictment. The record from the multiday jury trial is substantial. The facts recited are those necessary to an understanding of the general nature of the convictions against appellants.
Appellants were convicted of defrauding various public agencies and receiving payments to which they were not entitled. For clarity, the facts regarding each agency are set out separately.
A. Crystal Stairs
Crystal Stairs is a government-funded child care resource and referral agency that pays child care providers for qualified working parents. Case specialists meet with the custodial parents who provide personal and employment information, including information regarding the proposed caretaker.
Codefendant Jermone Thymes, John and Shirley’s daughter, had two children, Jermaura and Maurice, with codefendant Maurice Wright, and sought financial assistance in 1998 from Crystal Stairs for their care. Jermone indicated that she worked full time for Unlimited Professional Services.
Jermone obtained a judgment for child support against Wright, including arrears of approximately $48,000, and began to have his wages garnished. Jermone stated that she would stop having his wages garnished if he contacted Crystal Stairs and falsely claimed that he was taking custody of Jermaura and Maurice because Jermone had suffered a nervous breakdown. Wright completed an application form, including false employment information provided by Jermone, and updated it annually. For the next six or seven years, Wright falsely represented to Crystal Stairs that he had custody of the children.
Wright stated that the person caring for the children while he was at work was John Decaen, which was an alias used by John. Between July 2002 and July 2004, Crystal Stairs paid John, under the name of John Decaen, a total of $27,797, as the alleged caretaker of Jermaura and Maurice.
John was issued a California driver’s license in his own name in 1993. In 1998, he applied for and was issued a California driver’s license in the name of John Decaen. In 2001 and 2003, John received licenses in his own name, and in 2004, he received a license in the name of John Decaen.
During a routine verification check, a representative from Crystal Stairs contacted John who said he was the children’s grand-uncle, rather than their grandfather as he had previously represented. The representative told John that because he was an uncle, he needed to be “trust-lined, ” or scrutinized more carefully, through the Department of Justice. John then stated that he was the children’s grandfather.
Crystal Stairs continued to contact John regarding being “trust-lined.” Jermone provided a declaration stating that she was the mother of Jermaura and Maurice, and Shirley provided a declaration stating that she was Jermone’s mother and that John, under the name of John Decaen, was her father, and that they were the grandparents of Jermaura and Maurice. The declaration was sent to Crystal Stairs, accompanied by a letter from the Law Offices of Emeka Godfrey Onwualu, which stated that Jermone’s birth certificate confirming that John Decaen was her father could not be provided due to an error in the certificate.
John worked for Onwualu as a “runner, ” filing documents and performing other tasks, beginning in approximately 2002. Jermone also worked for a short time in Onwualu’s office as a paralegal and had access to his computer during that time. Onwualu denied knowing John by the name of John Decaen and testified that he had never written such a letter to Crystal Stairs.
Ultimately, Jermone and Wright changed the child care provider from John to Shaun Thymes, Jermone’s brother, in October 2004. Crystal Stairs then sent checks totaling $8,120 to Shaun at Wright’s address. During the time that Shaun was allegedly caring for Jermaura and Maurice, he was incarcerated in Ohio.
B. In-Home Supportive Services
The Los Angeles County Department of Public Social Services administers the In-Home Supportive Services (IHSS) program, which pays caretakers to provide assistance to the elderly, blind or disabled, so that these individuals may remain at home, instead of in a convalescent or residential facility. In 1999, John, through the alias of John Decaen, applied to IHSS to be the caretaker for his brother Willie Thymes. Shirley signed the application as the authorized representative for Willie. By masquerading as Willie’s caretaker, John received approximately $2,100 per month for providing in-home support services, and the total amount of payments made to John for the alleged care of Willie, which ended in 2004, was $102,017. At the time that John claimed to be taking care of Willie, Willie lived in Louisiana, not California. That fact would have automatically disqualified John from receiving any funds from IHSS.
In 1997, John applied to receive IHSS funds for himself, falsely claiming he was unable to care for himself. Jermone signed the application as his daughter, representing that John was disabled and receiving Supplemental Security Income (SSI) benefits of $600 per month due to his disability. From September 1997 to November 2005, IHSS paid various caretakers, including Shaun, William Mabry and Willie Mae Avery, on a monthly basis for the care of John. Payments made for his care totaled $52,464.56. Had IHSS known John’s true physical and mental conditions and monthly income, he would not have been eligible for services.
In 2006, John was put under surveillance and was observed opening heavy doors and running across the street.
In 2003, Shirley applied to receive IHSS funds and claimed that Shaun was her in-home caretaker. IHSS paid Shaun a total of $30,644 for the care of Shirley from June 2003 until 2005. Shaun was in custody in Ohio from March 30 through April 14, 2004, and from May 19 to June 14, 2004. In November 2004, Shaun was sentenced to state prison in Ohio and did not return to California until October 2006.
C. Supplemental Security Income
The SSI program is a federal and state funded cash-based assistance program for individuals who are disabled or legally blind and meet certain income restrictions, or who are over age 65. A person receiving SSI funds must report any earned income to the Social Security Administration (SSA), which administers SSI funds, so that the SSA may determine whether that person remains eligible for SSI funds and in what amount.
When a recipient of SSI funds is unable to care for his or her own affairs, including finances, another person may serve as the recipient’s “representative payee.” The representative payee handles the recipient’s affairs and finances, and acts as the liaison between the SSA and the recipient. A representative payee certifies that all SSI funds will be used for the care and upkeep of the recipient. The SSA encourages the representative payee and the recipient to maintain a joint bank account so that both parties may access the SSI funds easily.
In 1993, John began receiving SSI funds based on a claimed disability of mood disorders. Jermone served as his representative payee. John and Jermone maintained a joint bank account into which the SSA deposited John’s monthly SSI funds. During the relevant time frame, John received $340 per month in SSI funds.
Sometime in 2004, Maria Reyes, an SSA operations supervisor, learned that John had been paid $1,607.90 for representing a third party before the SSA Board in an unrelated matter, and had received $1,155 in casino winnings in 2002. Because neither John nor Jermone had reported these earnings to the SSA, Reyes sent Jermone a letter informing her of the SSA’s knowledge of the earnings and requesting that Jermone and John report to the SSA for an interview. Reyes testified that it was necessary to ascertain John’s true income to determine whether the SSA should reduce his monthly SSI payments, or eliminate them altogether.
John and Jermone failed to appear at the interview, but Jermone dropped off a letter stating that John had received only $20 in winnings, and not $1,155. Under SSA regulations, SSI recipients are not required to report winnings of $20 or less. Jermone also completed a redetermination of SSI eligibility form in which she represented, under penalty of perjury, that John met the mandatory minimum income requirements to collect SSI funds.
John and Jermone eventually met with Reyes in October 2004. During the interview, Reyes asked John a number of questions, including his name at birth, place of birth, parents’ names, past and present addresses and the name of his landlord. He answered all of these questions capably and with no hesitation. But when Reyes began questioning John about income received for representing third parties in disputes before the SSA Board, John refused to answer her questions and “totally shut down.” Jermone claimed that John could not answer these questions because he was medicated. This struck Reyes as disingenuous because John had no difficulty answering her previous questions and only became unresponsive after she began questioning him about sources of undeclared income.
At the conclusion of the interview, Reyes determined that John was fully capable of handling his own affairs and questioned his eligibility for the SSI program. The case was referred to the SSA’s Office of Internal General. That office conducted a fraud investigation and ultimately had John’s SSI benefits suspended in 2006. From March 1, 1993 thru June 1, 2006, John received $90,230.74 in SSI benefits. During part of this time period, John was also receiving funds from IHSS under the name of John Decaen as the alleged caretaker of Willie, as discussed above. Had John declared these ill-begotten funds to the SSA, it would have reduced his SSI payments by approximately $45,000 during the relevant time period.
D. 107th Street Property
In 1992 Milagro and Sergio Santos purchased a four-unit rental property at 1331107th Street in Los Angeles. Milagro believed that John and other family members had lived in the building before they purchased it. John began presenting Milagro with paperwork claiming that he owned the property. On January 11, 2006, John executed a grant deed, deeding the property to himself. He then began attempting to collect rent from the tenants. He served one tenant with a notice to pay rent or leave the property and filed an unlawful detainer action against her, which was ultimately dismissed.
DISCUSSION
1. John’s Claims
A. Failure to Discharge Juror
John contends the trial court abused its discretion by failing to discharge a juror who informed the court, in the middle of deliberations, that he no longer wanted to be on the jury because he was concerned that his employer would not continue to pay him and that he was falling behind on a project at work.
As relevant here, a trial court may discharge a juror for “good cause” at any time if the juror “is found to be unable to perform his or her duty.” (§ 1089.) A juror who refuses to abide by the court’s instructions is unable to perform his or her duty within the meaning of section 1089. (People v. Wilson (2008) 43 Cal.4th 1, 25; People v. Williams (2001) 25 Cal.4th 441, 448.) Likewise, a juror who refuses to engage in the deliberative process is unable to perform his or her duty within the meaning of section 1089. (People v. Engelman (2002) 28 Cal.4th 436, 442.)
“‘Before an appellate court will find error in failing to excuse a seated juror, the juror’s inability to perform a juror’s functions must be shown by the record to be a “demonstrable reality.” The court will not presume bias, and will uphold the trial court’s exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence. [Citation.]’” (People v. Jablonski (2006) 37 Cal.4th 774, 807.) To determine whether a trial court has acted within its discretion in retaining or discharging a juror, “we consider not just the evidence itself, but also the record of reasons the court provided.” (People v. Wilson, supra, 43 Cal.4th at p. 26.) “In doing so, we will not reweigh the evidence.” (Ibid.)
On the third day of deliberations, Juror No. 5 sent the trial court a note explaining that he was on his 14th day of jury service and his employer, a law firm, had agreed to pay for 15 days of jury service. When the trial court interviewed the juror and asked him whether it would be a hardship for him to continue serving without receiving pay, the juror did not answer the question and instead responded: “I would have to let them know what is the situation because of those days that we missed. It’s been quite a long time.” The trial court offered to prepare a letter for the juror’s employer explaining the necessity of the juror’s presence for deliberations. The juror responded: “Okay.”
On the fourth day of deliberations, Juror No. 5 explained to the trial court that he believed deliberations would continue for another week, and he no longer wanted to serve as a juror because his employer would not pay for additional time and he was worried about falling further behind on a work project. The trial court explained to Juror No. 5 that many jurors receive no pay at all during their service “[a]nd the rule of thumb is that if the case isn’t going to go beyond five to seven days, we’re not going to excuse a juror for hardship.” The trial court pointed out that Juror No. 5 had already received pay for 15 days and if he did not receive pay for another week, it would not be a hardship under the rule of thumb cited above. Juror No. 5 did not protest, and instead said, “I follow [your reasoning].” The trial court went on to suggest that if Juror No. 5 so desired, and the parties had no objection, the trial court would speak directly to his employer to explain the importance of his continued service. Neither side objected nor requested the court to discharge the juror. The following exchange then occurred:
“The Court: I understand. I’m not unsympathetic. It’s just, like I say, I’ve got to weigh everybody’s considerations here. And you’re an intelligent juror. You followed the case. And I think it’s in everybody’s interests to have you continue serving if it’s at all possible. And, as I say, I think, you know, the [law] firm should bend just a little bit on this.
“Juror No. 5: Right.
“The Court: And we all have an interest in the system.
“Juror No. 5: I just wanted to voice my opinion to the point that where I feel like personally I can’t really concentrate due to these circumstances and—and I’m not contributing as much as I possibly can.
“The Court: As I say, let’s go on and—you talk to the supervisor and have your supervisor talk to me if necessary; okay?
“Juror No. 5: Okay.
“The Court: So I am going to deny the request at this point.
“Juror No. 5: Okay.
“The Court: I have the letter, though. If you want to take that and pass it on to the supervisor when you talk to him; okay?
“Juror No. 5: All right.”
After Juror No. 5 returned to the jury room, the trial court indicated on the record that he found the juror’s reasons for wanting off the jury circumspect: “My concern would be—I think he’s trying to talk himself into a way off the jury. That’s my analysis.” The jury reached its verdicts both that day and the next day.
As an initial matter, because John did not object to the trial court’s decision to retain Juror No. 5, or move for a mistrial, he has forfeited his claim of error on appeal. (People v. Wilson, supra, 43 Cal.4th at p. 25.)
Nevertheless, considering the matter on the merits, we conclude that the record before us does not show a “demonstrable reality” that Juror No. 5 was unable to fulfill his functions as a juror. (People v. Jablonski, supra, 37 Cal.4th at p. 807.) Although the juror stated that his concern about his continued absence from work and not being paid if he served beyond 15 days had some affect on his concentration and contribution during the deliberation process, he did not say that he could not participate in the deliberative process altogether, nor was there any evidence that he failed to do so. The juror had already received pay for 15 days of service and he seemed satisfied when the trial court offered to speak directly with his employer if necessary. (Accord, People v. Turner (1994) 8 Cal.4th 137, 203–205 [not an abuse of discretion to retain juror whose pay situation did not affect the juror’s ability to be fair and impartial].) We are satisfied that the trial court acted within its broad discretion by retaining Juror No. 5.
B. Crime Prevention Fine
At sentencing, the trial court imposed a $10 crime prevention fine pursuant to section 1202.5, subdivision (a), for each of John’s fourteen convictions, for a total of $140. John contends the trial court should only have imposed one $10 fine. The People agree, as do we.
Section 1202.5, subdivision (a), provides in relevant part: “In any case in which a defendant is convicted of any of the offenses enumerated in Section... 487..., the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed.” In People v. Crittle (2007) 154 Cal.App.4th 368, 371, the court agreed that “the crime prevention fine can be imposed only once ‘[i]n any case.’ [Citation.]” The Crittle court noted: “Although defendant was accused and convicted of committing multiple offenses, this was still a single case. [Citation.] Thus, only one $10 fee could be imposed. [Citations.]” (Ibid.)
Accordingly, the crime prevention fine imposed pursuant to section 1202.5 must be reduced to a total of $10, and the trial court is directed to correct John’s abstract of judgment to reflect this amount.
II. Shirley’s Claim
The trial court ordered Shirley to pay $27,189.96 in restitution to IHSS. Shirley contends the restitution order must be reversed because there was no factual or rational basis for the amount imposed by the court.
Victim restitution is governed by section 1202.4. In subdivision (a)(1), the Legislature announced its intent that “a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Section 1202.4, subdivision (f), further provides as relevant here: “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 court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. [¶]... [¶] (3) To 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 defendant’s criminal conduct, including, but not limited to... [¶] (A) Full or partial payment for the value of stolen or damaged property.” (§ 1202.4 subd. (f); People v. Mearns (2002) 97 Cal.App.4th 493, 500 [“A victim’s restitution right is to be broadly and liberally construed”].)
The standard of review for a restitution order is abuse of discretion. (People v. Mearns, supra, 97 Cal.App.4th at p. 498.) “Under that standard, we are required to keep in mind that even though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must 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. Thygesen (1999) 69 Cal.App.4th 988, 992.) “No abuse of discretion will be found when there is a factual or rational basis for the amount of restitution ordered.” (People v. Hudson (2003) 113 Cal.App.4th 924, 927.) In People v. Hove (1999) 76 Cal.App.4th 1266, 1275, the court emphasized: “‘“‘... [S]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.’ [Citation.]” [Citation.] [¶] This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.]’”
The trial court held a hearing to determine the amount of direct restitution to be paid to IHSS. The evidence showed that IHSS paid Shaun a total of $27,189.96 between April 2004 and July 2005, as Shirley’s alleged in-home caretaker. In November 2004, Shaun was sentenced to state prison in Ohio and did not return to California until October 2006. Jermone testified on behalf of Shirley and stated that between 2003 and November 2004, Shaun was “back and forth” between California and Ohio, and during that time he provided legitimate services to Shirley. Jermone stated that she had purchased an airline ticket for Shaun to return to Ohio on November 17, 2004, but could not recall how much she had paid for it and did not have a receipt. She testified that other family members also assisted in caring for Shirley.
Shaun Thymes’ name was spelled “Sean” during the restitution hearing. For purposes of consistency, we will use the spelling “Shaun, ” as it was used during the trial.
Shirley also testified that Shaun had cared for her in 2004. The evidence showed that Shaun was in custody in Ohio from March 30 through April 14, 2004, released for about a month, and in custody again from May 19 to June 14, 2004. Shirley claimed that Shaun was in Los Angeles from June until November 17, 2004 taking care of her, and as such, the amount of restitution should not include the amount paid during that time period. Shirley requested that the restitution amount be reduced by $10,617.96, for a total of $16,572.
At a victim restitution hearing, once the prosecution makes a prima facie case for restitution, the burden shifts to the defendant to demonstrate that the amount of loss is other than that claimed by the victim. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) The trial court here noted that the defense evidence was very weak and pointed out that there was no documentary evidence of an airplane ticket purchased for Shaun in November 2004, that Jermone testified that the services provided by Shaun were sporadic, and that no records were kept. The court stated: “So I’m not persuaded that he was out there providing any services at this time, so the court is going to enter a restitution order that the defendant pay $27,189.96....”
We are satisfied that there was a rational basis for awarding $27,189.96 in restitution to IHSS. Jermone testified that Shaun was in California only “sporadically” during 2004, but she could not provide any specific dates, or even how often, or for how long, he returned to California. She also testified that even during the time Shaun was present, other family members provided care for her mother. Jermone, as Shirley’s daughter, had an obvious interest in reducing the amount of restitution to be paid by her mother. Likewise, Shirley failed to present any documentary or specific evidence demonstrating that Shaun was in California at all during 2004, and even if he were, there was no evidence beyond Shirley and Jermone’s bare assertions that Shaun provided any services to Shirley. Shirley had already pled no contest to committing perjury by declaration. The trial court could easily have found both Shirley’s and Jermone’s testimony lacking in credibility and that it failed to provide a sufficient basis to mitigate the total amount of restitution. It is the exclusive function of the trier of fact to assess the credibility of witnesses and to draw reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hale (1999) 75 Cal.App.4th 94, 105.)
Accordingly, we find no abuse of discretion by the trial court in ordering Shirley to pay $27,189.96 in restitution to IHSS.
DISPOSITION
The trial court is ordered to correct John’s abstract of judgment to reflect a crime prevention fine in the total amount of $10 imposed pursuant to section1202.5. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed.
We concur: BOREN, P.J., ASHMANN-GERST, J.