Opinion
C086000
07-25-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL WILLIAM WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62147240)
Defendant Michael William Williams pleaded no contest to insurance fraud (Pen. Code, § 550, subd. (b)(1)) and was granted three years' formal probation. Following sentencing, the trial court held a restitution hearing. At that hearing, the People submitted an exhibit prepared by special investigator for Berkshire Hathaway Homestate Companies (Berkshire Hathaway), Mark Nichols, showing a total of $11,822.68 lost as a result of defendant's fraudulent workers' compensation claim.
Undesignated statutory references are to the Penal Code. --------
Included in the $11,822.68 was $5,502 in temporary disability payments made to defendant. Nichols testified investigators hired by Berkshire Hathaway observed defendant between October 17, 2013, and October 25, 2013, and during that time saw he was working at the job for which he was claiming disability. Defendant, nevertheless, continued to receive disability payments from Berkshire Hathaway until March 4, 2014. Thus, Berkshire Hathaway was seeking restitution for all disability payments made to defendant between October 17, 2013, and March 4, 2014.
Defendant argued he should not be obligated to pay restitution for the disability payments he received after October 25, 2013, because there was "no proof" he was working while receiving those payments. The court was not persuaded by defendant's argument and ordered him to pay the entire amount of restitution requested by Berkshire Hathaway.
On appeal, defendant raises the same argument he did in the trial court: there is insufficient evidence he was working after October 25, 2013. Thus, he argues, the trial court abused its discretion in ordering him to pay $5,052 to Berkshire Hathaway as restitution for disability payments. We reject this argument.
A defendant has the right to a restitution hearing "to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) "The standard of proof at a restitution hearing is preponderance of the evidence, not reasonable doubt." (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319.) "Section 1202.4 does not, by its terms, require any particular kind of proof." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli).) "[A] prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once . . . the People have . . . made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]' [Citation.]" (People v. Millard (2009) 175 Cal.App.4th 7, 26; accord, Gemelli, at p. 1543.)
A restitution order is reviewed under the abuse of discretion standard. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The trial court abuses its discretion when it acts contrary to law (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298) or fails to 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. [Citations.]" (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) " '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.]" (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)
Here, the People presented uncontroverted evidence that from October 17, 2013, to October 25, 2013, defendant was working at the job for which he was claiming disability. The People thus established a prima facie case that beginning on October 17, 2013, defendant was not actually disabled. If defendant wanted to limit his restitution obligation to payments made between October 17, 2013, and October 25, 2013, the burden was on defendant to present evidence that after October 25, 2013, he in fact became disabled and was no longer working. (Gemelli, supra, 161 Cal.App.4th at p. 1543.) Defendant presented no such evidence. Accordingly, we conclude the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
RENNER, J.