P. v. O'Connor

Filed 3/28/06 P. v. O'Connor CA4/1

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California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed.

Michael O'Connor entered a negotiated guilty plea to grand theft from an employer (Pen. Code, § 487, subd. (b)(3))^[1] and three counts of forgery (§ 470, subd. (d)). When O'Connor entered guilty pleas, he gave a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The trial court suspended imposition of sentence and placed him on probation for three years, including a condition he pay restitution to the victim in the amount of $18,202. The sole issue O'Connor raises on appeal is whether the trial court erred in considering unpaid loans from the victim to O'Connor as loss resulting from O'Connor's criminal conduct.

FACTS

Horizon Engineering hired O'Connor as a bookkeeper in April 2003. On May 8, the employer loaned O'Connor $500. $375 was deducted from his paychecks and O'Connor posted in the company's record of economic transactions that the other $125 had been forgiven "as per M.C. [(Michael Castle, President of Horizon Engineering)]." Castle had not approved or authorized forgiving the loan. Believing that the $500 loan had been repaid, in December 2003, Horizon Engineering loaned O'Connor $2,000. O'Connor told his employer that the loan would be paid by February 28, 2004. He never paid anything on the $2,000 loan. O'Connor told Horizon Engineering, "the student loan he was expecting had been screwed up by the school administrators." Beginning in December 2003, and continuing through July 2004, company records indicate that without authorization O'Connor wrote company checks to himself in the amount of $17,062.

At a restitution hearing, the court ordered O'Connor to pay an agreed amount of $16,077 for checks written without permission and $2,125 for the unpaid balances on the loans.

DISCUSSION

Section 1202.4, subdivision (f), provides: "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." This statute is intended to require a defendant convicted of a crime to reimburse the victim of that crime for economic losses resulting from the crime. (§ 1202.4, subd. (a); see also Cal. Const., art. I, § 28, subd. (b) ["persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes"].)

In determining the amount of restitution owed, the trial court "must decide the amount of the loss on grounds which will withstand review for abuse of discretion." (People v. Ortiz (1997) 53 Cal.App.4th 791, 800.) " '[T]the trial court is vested with broad discretion in setting the amount of restitution [and] it may " 'use any rational method of fixing the amount of restitution which is reasonably calculated to make the victim whole.' " ' " (Ibid., quoting People v. Tucker (1995) 37 Cal.App.4th 1, 6.)

Here, the owners of Horizon Engineering advised the court that between December 2003 and July 2004, they lost: (1) $17,062 when O'Connor wrote a series of checks to himself or his roommate without authorization; (2) $125 when on July 15, 2003, O'Connor posted in the company account transactions that $125, the balance on a $500 loan from the employer, had been forgiven; and (3) $2,000 on February 28, 2004, when he did not pay the loan. O'Connor argues the trial court erred in ordering him to make restitution for the lost $125 and $2,000 because they were merely civil contract issues and were not the result of criminal conduct. The trial court disagreed finding:

"[W]hen people enter into contracts, people enter into contracts ideally where both sides are entering in with open eyes and both sides are dealing in good faith, and that's the way you're supposed to make contracts in this country. But that's not what happened here. Mr. Castle entered into the contract with Mr. O'Connor by ¾ without having all the facts before him in terms of what Mr. O'Connor was doing. So Mr. O'Connor was stealing money from him, plus trying to get loans from him at the same time. [¶] So I think that the conduct is part and parcel of the ongoing fraud that was going on at that time. So I'm going to find that it should be subject to restitution."

As O'Connor correctly points out, we must determine " ' ". . . whether there is any substantial evidence, contradicted or uncontradicted," to support the trial court's findings.' " (People v. Baker (1995) 126 Cal.App.4th 463, 458-469.) Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505.) The court must review the entire record most favorably to the judgment below and presume in support of the judgment the existence of every fact the fact finder could reasonably deduce from the evidence. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Here, in May 2003, O'Connor borrowed $500 from the company. In July 2003, he fraudulently posted on the record of company account transactions that Michael Castle forgave the $125 balance due on the loan. In December 2003, O'Connor obtained a $2,000 loan from the company based on his fraudulent posting that he had paid the amount owed on the May loan and his misrepresentation that he would pay off the loan from money the school was providing him by February 28, 2004. He also commenced in December 2003 to write to himself and his roommate a number of checks without authorization. This evidence supports the finding that the fraudulent posting in July, obtaining the loan in December, and forging the checks were all part of ongoing fraud. When a plea agreement contains a Harvey waiver, the court may consider crimes that did not lead to convictions in determining restitution. (People v. Campbell (1994) 21 Cal.App.4th 825, 830.)

O'Connor argues that by considering the $2,125 owed on the loans as a result of his crimes, the court deprived him of a civil trial and due process of law. However, in People v. Carbajal (1995) 10 Cal.4th 1114, the California Supreme Court determined that the trial court could order restitution to a victim for damage to a car where the defendant was convicted of hit and run. When fashioning conditions of probation, the trial court has broad discretion and a condition is proper if the loss is reasonably related to the crime and the payment of restitution serves a rehabilitative purpose. (Id. at pp. 1124-1125.) Here, it was proper to condition probation on O'Connor paying for all money he had stolen from Horizon Engineering, be it through forged checks, forged forgiveness of the balance due on the $500 loan, or by the $2,000 loan obtained through misrepresentations.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P.J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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^[1] All statutory references are to the Penal Code.