Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No. VCF186471A, Gary L. Paden, Judge.
Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Stephen G. Herndon and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Franson, J.
Appellant Patrick Yamtoubi was convicted of grand theft, multiple counts of forgery, and money laundering in connection with facilitating a fraudulent loan. He appeals now on several procedural grounds: improper venue; impermissible duplicative forgery convictions relating to a single instrument; erroneous failure to apply Penal Code section 654; and improper value and extent of liability for the restitution ordered. With the exception of venue and one aspect of application of section 654, respondent generally concedes appellant’s points. For the reasons discussed below, we affirm the judgment in part and reverse in part, and remand the judgment for proceedings in accordance with this opinion.
All future statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Some information has been gleaned from the reporter’s transcript of the grand jury proceedings, which was not included in the record by the parties. We thus take judicial notice of the grand jury proceeding reporter’s transcript included in the Petition for Writ of Mandamus filed on October 31, 2007, in this court (case No. F054051) in connection with this case. (People v. Clinton (1926) 78 Cal.App. 451, 453 [“It is an established principle that courts may take judicial knowledge of their own proceedings in the same case. [Citations.]”].)
In September 2005, appellant acted as though he were facilitating a loan (the Dell loan) between Robert Barach and two borrowers. Barach was led to believe the borrowers were Stewart and Cheryl Dell, residents of Tulare County, and that the loan would be secured by the Dells’ home. Appellant resides in Los Angeles County. Barach appears to reside in New York. In the course of the transaction, appellant emailed Barach copies of the Dells’ driver’s licenses and home insurance policy. Appellant also included in this email documents purporting to be scans of the signed and recorded deed of trust for the Dell property and the promissory note for the loan. The deed of trust appeared to have: (a) the Dells’ signatures, (b) a recording stamp from the Tulare County Clerk-Recorder’s office indicating the deed of trust was recorded on September 27, 2005, and (c) an official notary acknowledgment and stamp of one Linda Mula, a Tulare County notary.
Shortly thereafter, Barach wired to appellant’s business account $67,115.62. It appears on that same day or the day before, appellant wired $67,000 to an account belonging to his business associate, Robert Bame. Stewart and Cheryl Dell never authorized the loan, nor received the funds. Barach did not know at any time prior to making the Dell loan that the proceeds of the Dell loan were going to Bame.
Appellant and Bame had been involved together in various financial transactions prior to September 2005. One such transaction occurred a month before Barach funded the Dell loan, and involved Barach funding a loan to Bame, secured by Bame’s residence, and facilitated by appellant.
Bame defaulted on his loan with Barach, which in turn led Barach to investigate the Dell loan further in January 2006. He searched the Tulare County property records online for the document number stamped on the deed of trust for the Dell loan that he possessed. He found that the deed of trust with that document number listed in the Tulare County property records did not match the deed of trust he had received from appellant. He then called the Clerk-Recorder’s office to dispute the information in their online database. Staff there determined the deed of trust Barach possessed had a recording stamp that was obviously a forgery and called an investigator at the Tulare County District Attorney’s office to investigate.
The District Attorney’s office thereafter commenced grand jury proceedings and the grand jury indicted appellant with 10 counts of various criminal conduct in connection with the Dell loan: grand theft, with a special allegation the property taken exceeded $50,000; forgery of Stewart and Cheryl Dells’ signatures on the deed of trust and the Promissory Note; forgery of the notary acknowledgment and forgery and counterfeit of the notary seal; identity theft of Stewart and Cheryl Dell; and money laundering with the intent to facilitate the crime of theft by false pretenses.
Appellant filed a section 995 motion to dismiss the indictment on grounds that venue in Tulare County was improper. After briefing and a hearing on the matter, the trial court denied appellant’s motion.
Appellant petitioned for a writ of prohibition and mandate in this court, requesting we review the trial court’s determination. After requesting and receiving an informal response from the respondent, we summarily denied appellant’s petition in December 2007.
After the prosecution’s case-in-chief, appellant filed a section 1118.1 motion for judgment of acquittal, again based on improper venue. The trial court denied appellant’s motion.
The jury convicted appellant of three counts of forgery related to the deed of trust (Cheryl Dell’s signature and the two counts related to the notary), one count of forging Cheryl Dell’s signature on the promissory note, and a count each of grand theft and money laundering. It acquitted appellant of stealing Stewart Dell’s identity, and hung on the remaining three counts (forgeries related to Stewart Dell, and Cheryl Dell’s identity theft).
The trial court sentenced appellant to a total term of four years four months.
DISCUSSION
Appellant asserts Tulare County was the improper venue to hold the trial. He argues primarily that insufficient evidence demonstrated that any acts or effects constituting, or requisite to, the offenses occurred in Tulare County. He argues specifically, “[c]learly, the venue was not proper in Tulare County [simply] because appellant had some previous interaction with the Tulare County resident which later resulted in the unlawful use of their documentation.” Appellant also asserts that appellant’s acquittal and mistrial on the identity theft charges supports a finding venue was improper in Tulare County. Appellant’s assertions are not well taken, as discussed below.
The terminology used by the Penal Code, case law, treatises, and the various parties to these proceedings and the proceedings below varies between “venue, ” “jurisdiction, ” “territorial jurisdiction” and “jurisdictional territory, ” and sometimes is used interchangeably, but sometimes not. “Jurisdictional territory” is defined in section 691, as pertinent here, as the county in which the court sits. As to the other terms, our Supreme Court has made clear in People v. Betts (2005) 34 Cal.4th 1039 (Betts) that “venue” and “territorial jurisdiction” are distinct and separate concepts, governed by separate statutes: “venue merely establishes the appropriate place for trial [in the state] … [t]erritorial jurisdiction, by contrast, does implicate the authority of the court to consider and decide the criminal action [where a crime is executed partly within the state and partly outside the state].” (Id. at p. 1049; §§ 777 & 778a, subd. (a).)
Respondent asserts that venue is proper for two reasons. First, that the purported identity theft victims were residents of Tulare County. Respondent, however, cites as authority, a version of section 786, subdivision (b) (hereafter section 786(b)) that was not in effect at the time of the offense. Second, respondent asserts the transfer of the Dells’ documents to appellant from Tulare County “was established or inferable from the evidence, ” and were a requisite preliminary act to the offenses appellant committed. We agree with this second assertion, as discussed below. Because we agree venue was proper in Tulare County, we need not reach respondent’s harmless error argument.
Standard of Review
Since 2004, the determination of proper venue has no longer been a question of fact for the jury, rendered at the close of trial along with verdicts of guilt or innocence, but a question of law for the trial court to determine prior to trial. (People v. Posey (2004) 32 Cal.4th 193, 210, 212 (Posey).) Our Supreme Court has stated in the context of reviewing a venue determination: “we shall uphold the trial court’s determination on factual issues if supported by substantial evidence, and review its legal determinations independently. [Citation.]” (Betts, supra, 34 Cal.4th at p. 1057.) Moreover, “questions of law concerning procedural issues that do not themselves determine guilt or innocence – including any underlying questions of fact – are within the province of the court. [Citation.]” (Posey, supra, 32 Cal.4th at p. 207.) As we understand it, then, the question of venue is a mixed question of law and fact. Thus, the trial court’s factual findings underlying the determination of proper venue are subject to deferential review with a presumption of correctness. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801.) We then exercise our independent judgment, however, of what law should be applied, and review de novo, as a question of law, the application of the law to the facts. (See ibid.; People v. Leyba (1981) 29 Cal.3d 591, 596-597 superseded by statute as described in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223[describing the review process under former section 1538.5, subdivision (i) as to the mixed question of fact and law of a motion to suppress evidence based on a search or seizure].)
The Betts court further commented on the review standard: “[b]ecause venue generally was treated as an issue for the jury prior to our decision in People v. Posey, supra, 32 Cal.4th 193, the case law does not establish whether the trial court’s ruling on venue should be reviewed under a deferential or independent standard.” (Betts, supra, 34 Cal.4th at p. 1057, fn. 13.) The Betts court concluded the trial court’s ruling there was proper under either standard. We note People v. Federico (2011) 191 Cal.App.4th 1418, 1425, is the only published case we found setting forth a standard of review for venue determinations, finding it to be de novo review, as a question of law. We do not disagree in principle with Federico that questions of law are reviewed de novo, but merely acknowledge here that in this case there are underlying factual determinations requiring deferential review before applying the de novo standard of review to the question of law.
We further note that because the prosecution need prove the facts supporting venue only by a preponderance of the evidence, (Posey, supra, 32 Cal.4th at p. 211), this leads to the possibility of an incongruous – but not improper – situation where the trial court may find that a defendant is properly triable in the county, but a jury may implicitly find (evidenced by acquittals) that the facts the trial court relied upon to find venue proper were insufficient to find a defendant guilty beyond a reasonable doubt of the crimes charged, which were alleged to have taken place – or been prepared for – in that county. As the Posey court noted, “past decisions failed to appreciate adequately what is suggested by the difference in the respective burdens of proof for the crime and for venue – namely that notwithstanding any overlapping of the facts underlying both the crime and venue, venue is a procedural issue involving the appropriateness of a place for a defendant’s trial on a criminal charge, and not a substantive issue relating to the defendant’s guilt or innocence of the crime itself.” (Id. at pp. 211-212.) Thus, appellant’s assertion that a jury’s acquittal or inability to reach a verdict indicates the impropriety of venue is not well taken.
I.
TULARE COUNTY WAS A PROPER VENUE
A. As to the law to be applied, we look first to section 777, which states in pertinent part, “except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed.” Section 781 expands venue beyond the territory where the crime was committed, to include the jurisdictional territory where “the acts or effects … constituting or requisite to the consummation of the offense occur[ed].…”
As noted, respondent – and the prosecutor below, in connection with appellant’s section 1118.1 motion – also contended venue was proper under the provision of section 786, subdivision (b)(1), which currently places proper venue, among other possibilities, in “the county in which the victim [of identity theft] resided at the time the offense was committed.” This language, however, was effective only as of January 1, 2009, over three years after the crimes were committed. (Stats.2008, ch. 47 (S.B. 612), § 1.) At the time of the offenses in 2005, section 786 had no language regarding the resident county of an identity theft victim. (Ibid.; Stats.2002, ch. 908 (A.B. 1773), § 1.) Neither the prosecution at trial nor respondent here mentions why using the amended version of section 786(b) would not constitute an impermissible ex post facto application of the statute. (See Cal. Const., art. 1, § 9; § 3; People v. Grant (1999) 20 Cal.4th 150, 158.)
We note the Legislature also amended section 786, effective January 1, 2009, that in the event venue is proper solely based on a victim’s residency, then under a newly-created subdivision (b)(3) the trial court must hold a hearing to determine if venue is proper in that county when victim residency is the sole basis for venue. The Legislature also added language to section (b)(1), effective January 1, 2010: “Jurisdiction also extends to all associated offenses connected together in their commission to the underlying identity theft offense or identity theft offenses.” The implication of these amendments is that if this case were tried today, venue would undoubtedly be proper in Tulare County for all the charges, though the trial court and district attorney would still be mandated to comply with the provisions of subdivisions (b)(2) and (b)(3), as applicable.
We need not determine whether section 786 authorizes venue in Tulare County and the surrounding issues, however, given our determination that venue properly lies in Tulare County pursuant to section 781.
B. The practical procedure before us is to determine first whether substantial evidence supports the trial court’s implicit determination that venue was proper in Tulare County, and then independently determine whether the facts supporting such determination are sufficient to constitute a basis for proper venue in Tulare County within the framework of section 781, as a matter of law.
This review must be done in the context of the purposes of the venue statutes, which are fundamentally meant to balance, primarily, a community’s right to vindicate crimes committed within – and affecting – its territory and citizens, with a defendant’s interest in being protected from forum shopping and being required to stand trial in a “distant and unduly burdensome locale.” (See People v. Simon (2001) 25 Cal.4th 1082, 1092, 1110; People v. Hernandez (1976) 63 Cal.App.3d 393, 403; Posey, supra, 32 Cal.4th at pp. 210 & 222, fn. 12.)
Section 781 in particular has been held to a liberal construction. (People v. Bismillah (1989) 208 Cal.App.3d 80, 85 [“We … interpret section 781 in a commonsense manner with proper regard for the facts and circumstances of the case rather than technical niceties. [Citation.]”]; see also People v. Powell (1967) 67 Cal.2d 32, 62 [“[Section 781] was intended to broaden criminal jurisdiction beyond the rigid limits fixed by the common law in cases of crimes committed in more than one jurisdiction. [Citations.]”].) Thus, as this court noted in People v. Kellett (1982) 134 Cal.App.3d 949, at page 956, “‘section 781 is liberally construed to vest jurisdictional venue in the court of a county where only preliminary acts leading to the commission of a crime in another territorial jurisdiction of California occur. [Citation.]’ [Citation.] Thus, the ‘acts’ (as that term is used in § 781) vesting jurisdiction need not constitute an element of the crime charged. [Citation.] It is sufficient if the ‘acts’ of the defendant are requisite to the completion of the criminal offense. [Citation.]”
In Posey, the defendant made several phone calls from Sonoma County to a detective in Marin while negotiating the terms of a sale of cocaine, which was later consummated in San Francisco. Our Supreme Court concluded the phone calls were requisite preparatory effects to the commission of the drug offenses sufficient to affirm venue proper in Marin. (Posey, supra, 32 Cal.4th at pp. 219 & 221 [“the words ‘effects … requisite to the consummation’ of a crime establishing venue in a county should be liberally construed to embrace preparatory effects, such as the placement of a telephone call into a county leading to a crime”].)
Moreover, such preparatory acts need not even have been performed with a criminal intent. (See People v. Chapman (1977) 72 Cal.App.3d 6, 11 [finding venue proper in Santa Barbara County where defendant rented an automobile, “although the intent [to steal the car] may have arisen in [San Bernardino County]”]; Posey, supra, 32 Cal.4th a p. 220 [“absent from section 781 – as from the general venue provision of section 777 and from other venue provisions as well [citation] – is a requirement that the defendant possess any mental state whatever with respect to a county, for purposes of venue. The requirement of ‘effects’ in a county ‘requisite to the consummation’ of a crime satisfies the need for a reasonable relationship between the crime and the county and, as a result, restricts the People’s charging discretion within tolerable bounds.”].)
C. We begin with a deferential review of the trial court’s factual findings underlying its legal determination of proper venue. As noted above, the prosecution need only prove the facts supporting venue by a preponderance of the evidence. The facts required here to support proper venue in Tulare County would show that the offense was committed partly in Tulare County, or, the “acts or effects … constituting or requisite to the consummation of the offense” occurred in Tulare County. (§ 781.) The “offense” here would be any of the charges levied against appellant: grand theft, forgery, identity theft, or money laundering. Thus, we look for substantial evidence supporting the trial court’s implicit factual determination that either the offenses occurred partly in Tulare County, or the acts or effects requisite to the offenses occurred in Tulare County.
We look solely to the trial court’s determination as to the section 995 motion. As our Supreme Court has mandated venue be a legal determination for the trial court prior to trial, and is not a question of guilt or innocence, in our view a mid-trial motion pursuant to section 1118.1 requesting a directed acquittal is not appropriate to challenge venue.
The prosecution essentially argued it was reasonable to infer that the identity theft occurred in Tulare County because personal identifying information was rooted in the physical person, and the taking of the information from the person must necessarily have occurred where the person existed, and the practical physical location for where the person existed would be his or her residence. Although defense counsel argued no evidence indicated the information was in fact acquired in Tulare County because the paperwork for the Dells’ loan earlier in 2005 was signed in Los Angeles County, it is inferable from those facts that the Dells took the paperwork from Tulare County to Los Angeles at appellant’s request, which was later used to commit the charges levied against appellant.
We conclude after a review of the relevant record and case law, that the transfer of personal identifying information between the Dells and appellant was a requisite, preparatory act, and it was reasonably inferable from the evidence the prosecution presented that the transfer occurred at the request of appellant, and that appellant had to make contact with someone in Tulare County to effectuate the transfer. This is akin to Posey, supra, 32 Cal.4th 193 where the defendant there made several phone calls to Marin County while negotiating drug sale terms. Here, obtaining the documents from the Dells required appellant to contact the Dells in Tulare County as a preparatory act to the commission of the offense of stealing Barach’s money by false pretenses. It was reasonable for the trial court to infer from the evidence presented at the grand jury proceedings that the contact between appellant and the Dells to obtain these documents occurred while the Dells were in Tulare County. Both Stewart and Cheryl Dell testified they “turned over” or “g[a]ve” appellant their drivers’ licenses and home insurance policy, among other things, without specifying where they did so.
It is of no import whether appellant had the intent to use the Dells’ information without their authorization at the time he was obtaining their information, or later, in connection with the theft of Barach’s money. (Posey, supra, 32 Cal.4th at p. 220.)
We find substantial evidence supports the trial court’s factual finding based on a preponderance of the evidence presented at the grand jury proceeding that (a) appellant obtained the Dells’ personal information; (b) this obtaining was requisite to the grand theft, which in turn required or precipitated the forgeries and the money laundering; and (c) this obtaining could be reasonably inferred to have taken place in Tulare County in that the Dells could be reasonably inferred to have given their information to appellant in a manner that required appellant to contact the Dells while they were physically present in Tulare County and negotiate the obtaining of the information.
From a more practical perspective, appellant had ample notice he may be subject to venue outside of Los Angeles County for his crimes. (See Posey, supra, 32 Cal.4th at p. 221.) The trial court here was generous in continuances, as well as allowing appellant to be out on bail during the proceedings. Appellant cannot argue the trial was unduly burdensome, nor did he move for a change of venue under section 1033. We also note Tulare County is only two counties away from Los Angeles. (Cf. People v. Price (1991) 1 Cal.4th 324, 385-386 superseded by statute on other grounds as recognized by People v. Hinks (1997) 58 Cal.App.4th 1157, 1161[finding venue proper in Humboldt County where occurred preparatory acts to a murder in Los Angeles County].)
Section 1033 states in pertinent part: “In a criminal action pending in the superior court, the court shall order a change of venue: [¶] (a) On motion of the defendant, to another county when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.”
Venue was proper in Tulare County pursuant to section 781.
II.
DEED OF TRUST FORGERY CONVICTIONS
Appellant was convicted of three separate counts of forgery revolving around a single document, to wit, the deed of trust related to the Dell loan. He was convicted of forging Cheryl Dell’s signature on the deed of trust, and of forging a notary acknowledgment and notary seal and handwriting on the deed of trust.
Appellant contends he was improperly convicted of two of the deed of trust forgery counts because the law permits only one count of forgery per instrument. Respondent concedes the issue and suggests we vacate counts 6 and 7, relating to the forgery of the notary acknowledgment and seal. We accept the concession.
In People v. Ryan (2006) 138 Cal.App.4th 360 (Ryan), as pertinent here, the prosecution charged Ryan with two counts of forgery – under both subdivisions (a) and (d) of section 470 – in connection with Ryan signing the victim’s name on a check used to purchase goods from a store. A jury convicted Ryan of both counts of forgery. Examining prior case law, this court noted that our Supreme Court has concluded previously that each type of act described as an act of forgery in former section 470, “‘… singly, or all together, if committed with reference to the same instrument, constitute but one offense. Whoever is guilty of either one of these acts is guilty of forgery; but if he is guilty of all of them, in reference to the same instrument, he is not therefore guilty of as many forgeries as there are acts, but of one forgery only.…’” (Id. at p. 367, quoting People v. Frank (1865) 28 Cal. 507, 513.) This court thus concluded both of Ryan’s convictions for the forged check could not stand because committing “one or more of the proscribed acts [of section 470], with respect to the same instrument, constitutes but one offense.” (Id. at p. 367.) We explained that while a defendant may be charged with multiple counts of forgery with respect to a single instrument, a defendant “could be convicted of only one such count, ” and vacated the duplicative forgery count. (Id. at p. 371; see also People v. Kenefick (2009) 170 Cal.App.4th 114, 123 [“The rule of one count of forgery per instrument is in accord with the essence of forgery, which is making or passing a false document”].)
The former section 470 is substantively similar to the current section 470. (Ryan, supra, 138 Cal.App.4th at p. 367.)
Since there was only the single deed of trust related to the Dell loan, there can be only one count of forgery with respect to that deed of trust. We vacate the convictions for counts 6 and 7, together with the sentences imposed thereon.
III.
SECTION 654 APPLIES TO COUNTS 3 AND 10
The trial court sentenced appellant as follows: for count 1 (grand theft), the middle term of two years, plus one year for the special allegation; for count 3 (Cheryl Dell deed of trust forgery), one-third the middle term for a total of eight months, consecutive to count 1; for count 5 (Cheryl Dell promissory note forgery), two years concurrent and stayed pursuant to section 654 as part of the same course of conduct as count 3; for count 6 (notary acknowledgment forgery), one-third the middle term for a total of eight months, consecutive; and two years concurrent on both counts 7 (notary seal forgery) and 10 (money laundering).
In making its sentencing determinations, the trial court listed which counts it determined appellant had a separate objective. It found counts 1, 3, and 6 to be distinct with separate objectives. It found count 5 to be part and parcel with the conduct alleged in count 3. The trial court handed down concurrent sentences on counts 7 and 10 without further explanation or finding of appellant’s objective or intent.
Appellant asserts counts 3 and 10 should both be stayed pursuant to section 654. Appellant contends count 3 was a preparatory act to the theft, and count 10 was committed generally in connection with the single objective of stealing Barach’s money.
As discussed above, we have already concluded that counts 6 and 7 should be vacated, and thus remove them from section 654 consideration here.
Respondent concedes, and we accept, that count 3 should be stayed pursuant to section 654 because the forgery facilitated the objective of stealing Barach’s money. Respondent, however, contends that appellant had a separate objective with respect to the money laundering offense, i.e., to avoid detection. Appellant argues such an objective is not separate from the objective of stealing Barach’s money.
We agree with appellant that count 10 was committed with the same objective as the theft, as discussed below.
A. Section 654 Standard
Section 654 limits punishment for multiple convictions arising out of a single act or omission, or out of a course of conduct deemed to be indivisible in time, where the accused had only a single principal objective. (People v. Beamon (1973) 8 Cal.3d 625, 639.) “The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (Ibid.)
Section 654 provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
However, “‘[i]f all the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] …’ [Citation.]” (People v. Conners (2009) 168 Cal.App.4th 443, 458 (Conners).)
B. Appellant’s Actions Facilitated One Objective Only
Section 186.10, subdivision (a), makes money laundering a crime. For a finding of guilt, as applicable here, appellant conducted a transaction over the requisite threshold amount, through a bank (1) with the specific intent to facilitate the theft of Barach’s money by false pretenses, or (2) knew that the transaction represented the proceeds of, or was derived directly or indirectly from the proceeds of, the theft by false pretenses.
Section 186.10, subdivision (a) states in pertinent part: “Any person who conducts or attempts to conduct a transaction or more than one transaction within a seven-day period involving a monetary instrument or instruments of a total value exceeding five thousand dollars ($5,000), or a total value exceeding twenty-five thousand dollars ($25,000) within a 30-day period, through one or more financial institutions (1) with the specific intent to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of any criminal activity, or (2) knowing that the monetary instrument represents the proceeds of, or is derived directly or indirectly from the proceeds of, criminal activity, is guilty of the crime of money laundering.”
In Conners, supra, Conners received and cashed five checks representing stolen funds, all in amounts under $10,000. The appellate court concluded Conners’s actions constituted a single, indivisible course of conduct. The court commented, “[t]he most the People can say is that Conners intended to receive the stolen funds and to avoid detection. But the latter is clearly incidental to, not independent of, the former. Structuring his receipt of the stolen funds in amounts low enough to avoid detection was merely ‘the means of accomplishing or facilitating’ a single criminal objective: the receipt of stolen funds.” (Italics original; Conners, supra, 168 Cal.App.4th at p.458; cf. People v. Kronemyer (1987) 189 Cal.App.3d 314, 367 [“there was a significant time span between the theft transactions and each perjury transaction, and each criminal act was complete in itself, none depended on the other nor involved the same physical acts.”].)
The money laundering here was incidental to the single objective of stealing Barach’s money. It could not have been accomplished without the theft of Barach’s funds, and the money laundering occurred almost simultaneously with the unlawful receipt of Barach’s money, indicating it was part of a continuous course of conduct with the objective of depriving Barach of his money. Appellant testified he received the money from Barach and immediately turned around and wired the majority of the money to Bame.
Moreover, we can infer from the trial court’s decision to run the sentences for counts 7 and 10 concurrent that the trial court found the counts to have a single objective with another offense. (See Cal. Rules of Court, rule 4.425.)
On remand, the sentences for counts 3 and 10 should be stayed pursuant to section 654.
IV.
THE RESTITUTION ORDER
The probation report recommended restitution of $329,063.68, which was the amount that Barach listed in a spreadsheet he provided to the probation department. That amount, however, included amounts Barach lost from the Bame loan, as well as the Dell loan. Moreover, the spreadsheet listed attorney’s fees as a single item in the amount of $29,948.90 and did not break it up into fees paid for work on the Dell loan as opposed to the Bame loan. Barach’s supporting documentation for the attorney’s fee amount merely indicated the accumulated monthly payments Barach made to his attorney, who represented him with respect to both the Bame and Dell loans, and made no reference to how the attorney split his time per month between the two matters.
The trial court declined to follow the probation report’s recommendation, since it improperly included amounts related to the Bame loan. The court thus ordered restitution in the amount of $127,772.02, which included the Dell loan, interest, and $29,900 for legal fees. The court declined to include Barach’s unsubstantiated estimate of lost wages in the restitution amount.
Appellant contends the trial court erred when it included the $29,900 for Barach’s attorney’s fees in the restitution order. He asserts the figure includes fees for time spent on the Bame loan and related civil suit, which did not involve appellant’s proven criminal conduct, and are therefore unpermitted under section 1202.4, subdivision (f)(3)(H), as unreasonable.
Section 1202.4, subdivision (f) (hereafter section 1202.4(f)) states in pertinent part, “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 … in an amount established by court order, based on the amount of loss claimed by the victim … or any other showing to the court.”
Appellant also contends the trial court erred in denying his request at trial to make Bame jointly and severally liable with him for the restitution amount. Respondent generally concedes both issues. We accept respondent’s concession.
A. Attorney’s Fees
“A restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall. [Citations.] While the court need not order restitution in the precise amount of loss, it ‘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.’ [Citations.]” (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172-1173.)
Respondent concedes the trial court should hold a hearing on the attorney’s fees, and we accept the concession because evidence in the record could lead one to infer the fees were for work performed not in connection with appellant’s criminal conduct. We also note, however, that generally the trial court has broad discretion in determining restitution (People v. Millard (2009) 175 Cal.App.4th 7, 26), and the burden of proving the unreasonableness of the fees lies with appellant. (See People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407 [“When the probation report includes a discussion of the victim’s loss and a recommendation on the amount of restitution, the defendant must come forward with contrary information to challenge that amount. [Citation.]”]; Millard, supra, 175 Cal.App.4th at p. 26 [“At a victim restitution hearing, 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.]’ … [T]he burden [then] shifts to the defendant to demonstrate that the amount of the loss is other than that claimed…’”].)
B. Joint and Several Liability
At some point before trial, Bame severed his proceedings from appellant’s and entered into a plea agreement, with restitution limited to $125,000.
At sentencing, appellant requested the restitution liability be joint and several with Bame, but the trial court denied the request, based on the prosecution’s argument that Bame’s limited restitution amount ordered for him at a separate proceeding prohibited appellant’s restitution judgment from being shared with Bame.
Respondent concedes appellant and Bame should be jointly and severally liable for the restitution to Barach, up to the limit of Bame’s restitution agreement of $125,000, and we accept the concession. Although section 1202.4(f) neither expressly prohibits nor authorizes joint and several liability for restitution, this court has noted in the past that joint and several liability for restitution is proper. (People v. Madrana (1997) 55 Cal.App.4th 1044, 1050-1051.)
The trial court on remand should modify the restitution order to make liability joint and several with Bame, up to the limit of Bame’s plea agreement restitution amount.
DISPOSITION
The matter is remanded to the trial court and counts 6 and 7 are vacated, together with the sentences imposed thereon. The trial court is directed to (A) stay the sentence for count 3 (forgery of Cheryl Dell’s signature on the Dell loan deed of trust) and count 10 (money laundering), pursuant to section 654; (B) hold a hearing on the reasonableness of the attorney’s fees included in the restitution order; and (C) order that appellant and Bame are jointly and severally liable for the resultant restitution determined after the restitution hearing, up to the limit of Bame’s restitution stipulated in his plea agreement. In all other respects, the judgment is affirmed.
WE CONCUR: Levy, Acting P.J., Cornell, J.
In accordance with Evidence Code section 459, subdivision (d), we have provided the parties the opportunity to present information relevant to the propriety of taking judicial notice of the prior writ petition and related record, including the portion of the grand jury proceedings attached as an 182-page exhibit thereto. Appellant opposed our taking judicial notice. In doing so, appellant referenced Williams v. Hartford Ins. Co. (1983) 147 Cal.App.3d 893, which is inapposite, as that disallowed judicial notice of testimony from a grand jury proceeding as hearsay, on the basis that the “current trier of fact” must make the determination of credibility, (id. at p. 899) rather than relying upon the prior cross-examined statements under oath in front of a different trier of fact at that stage in the proceedings. Here, the trial court was making a determination of law, and the trier of fact was not part of this process. We also note that appellant's reference to People v. Hardy (1992) 2 Cal.4th 86, 134, is also misplaced, as that case addressed the situation where the reviewing court was taking judicial notice of documents that were not presented to the trial court. Here, the trial court was presented with the grand jury proceedings, and in fact the court's ruling based on that information is what is fundamentally at issue.
In other words, as we are reviewing the basis for the trial court’s denial of the pretrial 995 motion claiming improper venue, in order to address appellant’s claim on its merits we must take judicial notice as proposed, over his objection. The 995 motion, briefing and ruling are in the clerk's transcript provided in the appellate record and reference the grand jury proceedings. In the alternative, we would have to dismiss the appeal for appellant’s failure to provide us with an adequate record. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 283.)
As we understand it, appellant challenges venue only – i.e., that trial was not brought in the proper county. We therefore limit our language to this issue, notwithstanding using “venue” and “jurisdiction” synonymously as we reference other sources.
Section 1202.4(f), subsection (1) grants a defendant the right to “a hearing before a judge to dispute the determination of the amount of restitution.” Subsection (3) compels the restitution amount be “sufficient to fully reimburse the victim … for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to … [¶] … [¶] (H) Actual and reasonable attorney’s fees ….”