Filed 6/15/22 P. v. Baumann CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Terra Amanda Baumann appeals an order directing her to pay $10,466.92 in restitution to the Lake County Department of Adult Services (department) to reimburse the department for payments it made to defendant for services she did not render. She contends the court abused its discretion in calculating the amount of restitution. We agree that there is no evidentiary support for the trial court’s finding that defendant did not accompany one of her clients to the client’s medical appointments. Accordingly, we shall reduce the amount of the award by $450.45 and affirm the restitution order in all other respects.

Background

Defendant was paid by the department to provide in-home support services to two elderly women. Under the needs assessment done by the department, the first client was entitled to six hours a month for house cleaning, four hours and 45 minutes a week for meal preparation, two hours and 40 minutes a week for meal clean-up, one hour a week for laundry, one hour and 30 minutes a week for grocery shopping and other errands, 42 minutes a week to assist with bathing and getting dressed, 16 minutes a week for ambulation assistance with doctors appointments and 30 minutes a week for accompanying her to her medical appointments.[1] After receiving a report that the client’s home was not habitable, a social worker visited the client’s home to perform a welfare check. At that time, he found that the home was covered in dried dog feces and urine, “the kitchen was not clean,” the entire home “smelled horrible,” and everything was so dirty “you didn’t want to sit down.” The bathroom sink was dirty and the shower looked like it had not been used “in a very long time.” It did not appear to the social worker that his client had bathed “in some time” and she was wearing “very soiled and dirty clothing.”

The social worker reported the condition of the home to a fraud investigator who returned with him the following day. Despite signs that someone had attempted limited cleaning after the social worker’s visit, the investigator confirmed the overall poor condition of the home. After it was determined that the client needed to be removed from her home, the social worker attempted to pack the client’s clothing but could only put together a couple of clean outfits based on old clothing found in the bottom of a dresser drawer. He could not find any clean undergarments.

The investigator’s written report indicates that the client told the investigator that defendant does not help her with her cooking, bathing or dressing and that defendant had not cleaned her house in several months. She said that defendant goes to the store for her and that, while the client had been doing her own laundry, after she ran out of propane for her dryer, she began asking defendant to take her wet laundry to be dried at the laundromat. Based on his investigation, the investigator determined that defendant submitted fraudulent timecards and received overpayments for services allegedly provided to this client.

The investigator later determined that defendant also submitted fraudulent timecards and received overpayments for services allegedly provided to the second client. In that case, the client reported that defendant only worked four hours per week for her. The investigator’s written report explains that defendant was scheduled to work from 11:00 a.m. to 1:00 p.m. on Tuesdays and Thursdays for an average of 17.5 hours per month, but that her time cards claimed an average of approximately 51.5 hours per month.

Based on the results of the investigation, defendant was charged with elder abuse likely to result in great bodily injury (Pen. Code,[2] § 368, subd. (b)(1)); preparing a writing with the intent to present a false claim (§ 550, subd. (a)(5)); grand theft (§ 487, subd. (a)); and presenting a false claim (§ 72). Pursuant to a negotiated disposition, defendant pled no contest to one count of elder abuse likely to result in great bodily injury and one count of grand theft. Consistent with the terms of the negotiated plea, imposition of sentence was suspended, and defendant was placed on three years of formal probation and ordered to serve one day in county jail with credit for time served.

At a contested restitution hearing, the department presented evidence that during the fraud period (November 16, 2016 to December 13, 2017) defendant charged the department a total of $7,900.48 for 412 regular hours and $1,389.03 for 67 overtime hours for services to the first client.[3] While based on the condition of the client’s home the investigator initially believed that defendant had performed no work for that client, he subsequently concluded that defendant had performed the 1.5 hours of work allotted per week for shopping and running errands. After applying a $909 credit for shopping services, the total restitution requested for this client was $8,380.51.

With respect to the second client, the investigator determined that between August 31 and December 31, 2017, defendant had been paid for approximately 51 hours a month but had only performed approximately 17 hours of work per month. The department calculated that for this period defendant charged the department $1,008.22 for 96 regular hours and $1,078.19 for 70 overtime hours of work that she did not perform. The total restitution requested for this client was $2,086.41.

Defendant testified that she regularly performed services for the first client, including shopping, taking her to medical appointments, doing her laundry, preparing her meals and cleaning the rooms where the client allowed her to go. She explained that the client would not always allow her to do the cleaning and prohibited her from entering many of the rooms. She explained that when she first began to work as on in-home service provider, she was told that as part of her duties, she would not be expected to pick up after or feed her client’s pets. She claimed that the social worker also told her that she was not responsible for the animals. She testified that, although she occasionally prepared eggs for her client, her client did not like her cooking and preferred to eat frozen dinners. After the propane went out, she started cleaning her client’s laundry at the laundromat. Finally, she testified that, in addition to taking her client to her regular medical appointments, her client had “quite a bit of dentist appointments, and she had eye doctor’s appointments in Lakeport quite frequently.”

With regard to the second client, defendant testified that she spent many hours, sometimes up to eight hours a day, two or three days a week, cooking, cleaning and doing her client’s laundry. She claimed that the client was forgetful and slept most of the time so she did not realize how long defendant was there.

Two additional witnesses testified on behalf of defendant. One testified she had seen defendant doing laundry for a client. The other testified that she was a receptionist at a medical clinic and had seen defendant accompany the first client to medical appointments approximately every couple of weeks. On cross-examination, the witness acknowledged that she had worked at the clinic from April 2016 to November 2016, before the fraud period commenced.

The court ordered restitution in the amount of $10,466.92. The court found that defendant had not performed any work for the hours claimed on her time sheets for which the department was seeking restitution.

Defendant timely filed a notice of appeal.

Discussion

Section 1202.4, subdivision (f) requires the court to order full restitution of a victim’s economic losses. “At a restitution hearing, the People carry the initial burden of demonstrating the amount of the victim’s economic loss. [Citations.] Their showing establishes the amount of restitution the victim is entitled to receive, and the burden shifts to the defendant to prove by a preponderance of the evidence that the loss is other than that claimed.” (People v. Selivanov (2016) 5 Cal.App.5th 726, 788.) “[T]he court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole.” (People v. Baker (2005) 126 Cal.App.4th 463, 470.) “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. Carbajal (1995) 10 Cal.4th 1114, 1121.)

We review the restitution order for an abuse of discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) “ ‘ “A victim’s restitution right is to be broadly and liberally construed.” [Citation.] “ ‘Where 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.]’ . . . ‘In reviewing the sufficiency of the evidence [to support a factual finding], 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 court’s 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 court’s] 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.’ ” (Ibid.)

Defendant contends there is no substantial evidence to support the court’s determination that she performed no work for the first client, other than shopping. She faults the court for applying an all or nothing approach to calculating restitution and for failing to give her credit for at least some of the domestic services she claims to have performed. Initially, we note that the court reasonably relied on the client’s needs assessment to determine what services defendant was supposed to be providing and the frequency and duration of those services. Thus, while it is possible defendant spent more than 1.5 hours a week shopping and running errands for her client, the court reasonably credited her only for the time authorized in the needs assessment.

Contrary to defendant’s arguments, we find sufficient support for the court’s determination that defendant did not perform any domestic services for the first client. The photographs of the client’s home strongly support the inference that no cooking or cleaning was being done in the home during the relevant time period. Defendant’s explanations for why she was unable to cook or clean and her suggestion that cleaning the animals’ waste was not part of her job are immaterial. If she was unable to perform these tasks or did not feel she was required to perform certain tasks, she should not have requested to be compensated for them.[4] The social worker’s observation regarding the client’s personal appearance supports the determination that defendant was not regularly assisting her client with her personal hygiene. Defendant’s claim that she took the client’s laundry to the laundromat was reasonably rejected based on the social worker’s testimony that the client was wearing dirty clothes when he went to her home and he was only able to find old clean clothes for the client when he removed her from the home. While it is possible that defendant did some laundry for her client during the fraud period, the court’s conclusion is reasonable given the client’s statement that she did her own laundry except when she ran out of propane. Accordingly, the court reasonably found that none of the time claimed on defendant’s time sheets could be justified by performance of these services.

The department’s claim for restitution, however, includes no factual support for the court’s determination that defendant did not regularly accompany her client to medical appointments. To the contrary, the investigator’s report states that defendant “performed only the bare minimum of . . . services for [the client]. (Bringing her frozen meals and driving her to medical appointments).” The investigator’s report includes a statement from the client’s ex-husband that defendant took the client shopping and to the doctor but did not cook or clean the house. Although defendant’s witness did not work at the medical clinic during the fraud period, her testimony still provides some evidence that defendant was performing that task. Accordingly, as with the shopping, defendant is entitled to a credit for an additional 46 minutes a week in pay.[5]

With respect to the second client, defendant contends the department failed to credit her for the time she spent taking the client to the market, feeding her birds and doing her laundry. When first interviewed by the investigator, the client repeatedly stated that defendant came twice a week for two hours. When asked if defendant cooked for the client, she responded, “No but she does take me to the market sometimes.” During a second interview approximately a week later, however, when confronted with timesheets showing defendant had claimed “many more” than two hours per day, the client’s story changed. The investigator’s report states, “I began showing her timesheets showing that [defendant] claimed hours on days other than Tuesday or Friday. She replied, ‘That must have been while I was in the hospital.’ I showed her more timesheets all showing [defendant] claimed many more than the two hours per day that she said [defendant] works. She then changed her story and said [defendant] stays longer and sometimes to take her to the market. [The client] stated that [defendant] sweeps outside and feeds the birds. I pointed out that [the department] will not pay a provider to feed the birds. [The client] said, ‘Oh well that’s while the clothes are in the dryer.’ [The client] then stated she has not been feeling well lately, and is having trouble remembering things. I pointed out to [the client] she had previously told me, with a social worker present that [defendant] only works two (2) days per week and about two (2) hours per week. [The client] stated she must have been wrong when she said that. It appears [the client] is now trying to cover up for [defendant]. [The client] told me about bad experience she has had with previous providers, she feels [defendant] is worth more, so even if she is charging for more hours than she works it is justified because she is a good provider.” Given the client’s initial certainty that defendant only worked four hours a week for her, the court reasonably concluded that all charges in excess of that amount were fraudulent.

Based on the above, we will reduce the restitution order by $450.45 to reflect the time allotted in the needs assessment to accompany the first client to her medical appointments.[6]

Disposition

The amount of restitution to the department is reduced to a total of $10,016.47 and otherwise affirmed.

POLLAK, P. J.

WE CONCUR:

BROWN, J.

NADLER, J.*

[1] Somewhat confusingly, the needs assessment is based on an estimated 14 medical appointments per year, divided on a weekly basis.

[2] All statutory references are to the Penal Code.

[3] Defendant was paid at a rate of $10 per hour from November 2016 until December 2016 and at a rate of $10.50 from January 2017 to December 2017. Overtime was calculated at time and a half. According to the investigator, service providers are paid overtime if they work more than 40 hours total for all clients during a week.

[4] Defendant places undue reliance on a social worker’s notation in her client’s case file from December 21, 2017. The note states that a different social worker attempted a home visit that day, having received a report that the client’s home is “full of dog feces” and is “always filthy and needing cleaning.” The social worker wrote that from outside the front door, the living room floor appeared void of animal feces and the kitchen counters were cleared of dirty dishes and appeared clean. She also reported that the client was wearing warm, clean clothes. The note clearly indicates, however, that the client did not allow that social worker into her home. Given the first report and the condition of the home depicted in the photographs taken less than three weeks later, the court was justified in giving little weight to the social worker’s limited observation from outside the front door.

[5] At the restitution hearing, the investigator incorrectly combined the 16 minutes per week allotted to help the client “in and out of cars and buildings for doctor’s appointments” with the time allotted to dressing, rather than the time allotted to medical appointments. We rely on the written needs assessment.

[6] This amount is calculated based on .77 hours a week at a rate of $10 an hour for 6 weeks in 2016 and $10.50 for 50 weeks in 2017.

* Judge of the Sonoma County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.