P. v. Pease

Filed 3/30/06 P. v. Pease CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed.

Michele A. Pease entered negotiated guilty pleas to seven counts of burglary (Pen. Code,^[1] § 459), one count of diversion of funds (§ 484b), one count of using personal identifying information of another (§ 530.5, subd. (a)), and one count of obtaining property by false pretenses (§ 532, subd. (a)) in exchange for dismissal of other charges and a stipulated nine-year sentence. The court sentenced her to prison for nine years: the three-year middle term for diversion of funds with consecutive eight-month terms on the remaining nine convictions (one-third the middle term). The court ordered Pease to pay victim restitution, including but not limited to, $18,517.47 to Premier Nutrition, $7,508.02 to Tommy Gomez/Ooh La La, and $20,575 to Richard Weber.

Pease contends the evidence does not support the amount of restitution the court ordered her to pay. We reject the contention and affirm the judgment.

FACTS

In August 2002, Richard Weber entered into a contract with Designing Divas, a partnership between Pease and Debra Allen, for remodeling a home. Weber paid $27,900. Most of the work was substandard and not completed. Money was not refunded. Weber filed a civil suit against Designer Divas, Pease and Allen. Pease defaulted and Allen settled. One provision in the settlement was that all parties would be responsible for their own costs and attorney fees.

Between April 2001 and February 2003, Pease charged $15,859.81 for goods at the retail store Ooh La La on a debit card in the name of Janet Kreutner. Pease also cashed checks in the name of Designer Divas at the store.

Between July and December 2000, Pease worked for Premier Nutrition. She made $4,968.52 personal purchases on the company's credit card and obtained from Premier Nutrition $13,548.95 in fraudulent reimbursements.

DISCUSSION

The trial court is vested with broad discretion in setting the amount of restitution. (People v. Ortiz (1997) 53 Cal.App.4th 791, 800; People v. Tucker (1995) 37 Cal.App.4th 1, 6.) Pease argues that the trial court erred in ordering her to pay $8,312.12 of the $18,517.47 to Premier Nutrition; $3,795.62 of the $7,508.02 to Tommy Gomez/Ooh La La; and $3, 250 of the $20,575 to Richard Weber.

Pease argues that $8,312.20 of the loss Premier Nutrition claimed was for approved expenditures. However, in response to this same claim made in Pease's restitution brief filed in the trial court before the restitution hearing, the People filed a brief that included a detailed statement by Premier Nutrition personnel opposing this claim. This statement included a listing by Hope Hankin Barnett, director of human resources at Premier Nutrition, of 11 expenditures totaling $1,104.08 and receipt by Pease of four forged or fraudulently obtained checks written on Premier Nutrition's account totaling $7,208.12. On appeal, Pease argues we should not consider this information because it is double hearsay. However, when exercising its discretion, the trial court can rely on any reasonable source of information, including hearsay. (People v. Hove (1999) 76 Cal.App.4th 1266, 1275; People v. Baumann (1985) 176 Cal.App.3d 67, 81.)

Regarding Weber's claim, Pease only disputes the inclusion in the amount of $3,250 awarded for attorney fees incurred in the civil action he filed against Pease and her partner, Debra Allen, to recover Weber's loss that he settled with Debra Allen. However, section 1203.4 specifically authorizes inclusion of attorney fees incurred in a civil action to recover a victim's loss resulting from a defendant's crime. (§ 1202.4, subd. (f)(3)(H).)

Pease also argues the trial court erred in including in its restitution order $2,385.62 for luggage missing from Ooh La La and $1,410 for research conducted by a secretary into the loss. These claims were included in a letter from the owner of Ooh La La that was attached to the probation report. The store owner stated that Pease had taken and not paid for luggage valued at $2,385.92 and Ooh La La incurred a $1,410 expenditure for 94 hours a secretary used to research the loss. Before a trial court can order payment of restitution the victim must present facts creating a prima facie case of economic loss and its value. (People v. Fulton (2003) 109 Cal.App.4th 876, 885-886.) Here, Ooh La La's letter contained facts showing a loss to the victim and the amount of that loss. Once a prima facie case of loss and its amount was presented, the burden shifted to Pease to rebut the claimed loss or its amount. (Ibid.) Pease presented no evidence rebutting the loss claimed by Ooh La La. Pease presented no evidence to rebut the claim. Despite Pease's argument that the evidence is not credible, we must defer to the trial court's

finding of fact as to the credibility and weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)

As indicated above, we review a restitution order for abuse of discretion. Although the trial court has broad discretion in making a restitution award, the discretion is not unlimited. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) The trial court is required to make the victim whole, but it may not make an order that is arbitrary, capricious or exceeds the bounds of reason. (People v. Welch (1993) 5 Cal.4th 228, 234; see also People v. Hove, supra, 76 Cal.App.4th at p. 1275.) In determining the amount of restitution, the trial court may use any rational method of fixing the amount of restitution, which is reasonably calculated to make the victim whole. (In re Brian S. (1982) 130 Cal.App.3d 523, 527.)

" ' "When there is a factual and rational basis for the amount of restitution ordered . . . , no abuse of discretion will be found by the reviewing court." ' " (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132, quoting People v. Mearns, supra, 97 Cal.App.4th at p. 499; also see People v. Dalvito (1997) 56 Cal.App.4th 557, 562.) Here, the People presented information supporting the losses at the restitution hearing. Given the information presented here, the restitution order meets the rational basis test because it is reasonably calculated to make the victim whole and is consistent with the purpose of rehabilitation. (In re Brian S., supra, 130 Cal.App.3d at p. 527.) Therefore, the trial

court did not abuse its discretion in ordering appellant to pay the amount of restitution determined.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.

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