P. v. Amey

Filed 6/28/06 P. v. Amey CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Brenda Joyce Amey appeals an order imposing $18,882.91 restitution as a condition of probation. We modify the order by striking the $200 probation violation restitution fine, but otherwise affirm. (People v. Arata (2004) 118 Cal.App.4th 195, 201-203 [trial court does not possess statutory authority to impose a probation violation restitution fine].)[1]

FACTS AND PROCEDURAL HISTORY

Thomas and Dorothy Horton owned Thomas Horton Associates, Inc., a small corporation in Ojai that produced and marketed documentary films to television networks. The Hortons were elderly, and their daughter, Jean Horton-Garner, was an employee in their business.

In 2003, the corporation employed Amey as a bookkeeper, paying her in advance. Over a six month period, she forged 13 corporate checks and took $11,170.31 from the business. Garner discovered the losses when she routinely audited the corporate bank account. Subsequently, the bank reimbursed the corporation only $2,900.36.

On October 13, 2004, Amey pleaded guilty to forgery. (Pen. Code, § 470, subd. (d).)[2] The trial court suspended imposition of sentence and granted her five years' formal probation, with terms and conditions that included 180 days' confinement in the county jail and restitution to the Hortons' business. The trial court also imposed a $200 restitution fine and another $200 "[p]robation [v]iolation [r]estitution" fine.

During the sentencing and restitution hearing, the trial court reviewed the receipts and victim impact statements submitted by the Hortons. Mr. Horton and Garner also testified. Garner stated that the corporation was in "a downturn" when it employed Amey. Subsequently, the corporation dissolved because it was "never able to recover from this great loss."

Garner prepared a written summary of losses relating to the forgeries. She claimed damages for time spent preparing a report for police officers, discussing the matter with the corporation's attorney, preparing evidence for trial, and attending court, among other things. Mr. Horton also claimed damages for time spent meeting with police officers and the bank manager, discussing the case with the prosecutor, and attending court.

The trial court imposed restitution of $18,882.91, calculated as follows: $11,170.31 forged checks losses; $337.50 legal fees incurred by the business; $3,062.57 outside accounting fees; $130.10 check and bank fees; $3,494.97 salary for Garner regarding the forgeries; $1,615 "time lost" for Thomas Horton regarding the forgeries; and $1,972.82 employer taxes for employees' time regarding the forgeries. The trial court subtracted the bank payment of $2,900.36, and declined to award restitution for a loan the Hortons made to Amey, or for estimated bookkeeping expenses to correct the corporation's accounts and to prepare tax returns.

Amey appeals and contends that 1) the restitution order includes improper items of compensation, and 2) statutory law does not authorize the probation violation restitution fine.DISCUSSION

I.

Amey argues that the restitution order is improper because it includes amounts that do not qualify as economic losses. (§ 1202.4, subd. (f)(3) [restitution order reimburses victim for "economic loss incurred as the result of the defendant's criminal conduct"].) She challenges the salaries for Mr. Horton and Garner, and the employer taxes upon those salaries ($7,082.79 total). Amey relies upon People v. Friscia (1993) 18 Cal.App.4th 834, 838 [restitution may not compensate for monetary value of time spent investigating crime or assisting police]. She also challenges the salary and per diem expenses for an outside accountant to complete her duties after she suddenly left the Hortons' employment ($ 3,062.57).

Section 1202.4, subdivision (f), requires the trial court to order direct victim restitution "in every case in which a victim has suffered economic loss as a result of the defendant's conduct." Section 1202.4, subdivision (a)(1), states: "It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime."

The restitution amount "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct." (§ 1202.4, subd. (f)(3).) Economic losses include "[w]ages or profits lost by the victim . . . due to time spent . . . assisting the police or prosecution." (Id., at subd. (f)(3)(E).)

We review a restitution order under the abuse of discretion standard. (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409.) The trial court must use a rational method to fix the amount of restitution to make the victim whole. (People v. Hudson (2003) 113 Cal.App.4th 924, 927.) The trial court does not abuse its discretion in fixing a restitution order if a factual and rational basis for the award exists. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)

The trial court did not abuse its discretion in fixing the restitution award. Mr. Horton and his daughter managed and operated the family business. The time they spent investigating the forgeries and assisting police officers and the prosecutor was time that they were unable to devote to the business, ultimately causing it to lose profit and fail. Mr. Horton stated in his victim impact statement that the forgery investigation precluded his drafting program proposals and the marketing of programs. Garner stated in her victim impact statement that the forgeries precluded her attending the international television market conference, which normally results in $50,000 net revenue to the business. The trial court reasonably decided that the time spent by Mr. Horton and his daughter was compensable because they were unable to attend to vital matters of their family-owned business.

People v. Friscia, supra, 18 Cal.App.4th 834, is distinguishable. There the defendant embezzled money from a preschool. The preschool owners spent more than 200 hours investigating the embezzlement. The reviewing court concluded that the owners were not entitled to restitution for their investigation time because "there is no evidence in the record that it reduced their salary or profit." (Id., at pp. 836, 838.) In contrast, Mr. Horton and Garner provided statements indicating that their investigation and cooperation with police and the prosecutor precluded vital creative and marketing efforts, ultimately causing the business to fail.

The restitution award concerning employment of the outside accountant and her per diem expenses was also proper. Garner wrote in her victim impact statement that Amey left her employment after being confronted with a forged check. Amey left unfinished bookkeeping matters, including training another bookkeeper and completing tax accounting. The report of the probation officer indicates that the Hortons paid Amey in advance. The trial court properly viewed the outside accountant and her expenses as compensable losses directly flowing from Amey's criminal conduct.

II.

Amey asserts that the trial court had no statutory basis to impose a probation violation restitution fine. (People v. Arata, supra, 118 Cal.App.4th 195, 201-203.) The Attorney General concedes.

The probation violation restitution fine was improper. "[A] trial court has no statutory authority to order a second restitution fine upon revocation of probation, because a restitution fine imposed as a condition of probation remain[s] in force despite revocation of probation." (People v. Arata, supra, 118 Cal.App.4th 195, 201-202.)

The order is modified to strike the $200 probation violation restitution fine, but otherwise affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Bruce A. Clark, Judge

Superior Court County of Ventura

______________________________

California Appellate Project, Jonathan B. Steiner, Executive Director, and Suzan E. Hier, Staff Attorney, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Tasha G. Timbadia, Deputy Attorney General, for Plaintiff and Respondent.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Real Estate Attorney.

[1] In 2004, the Legislature added Penal Code section 1202.44 requiring imposition of a probation revocation restitution fine.

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