P. v. Montesinos
The People charged defendant with five counts of caretaker theft from Margaret Schwab (Margaret), an elder (Pen. Code,[2] 368, subd. (e)); seven counts of grand theft of personal property ( 487, subd. (a)); 11 counts of using personal identification information of another ( 530.5, subd. (a)); 11 counts of obtaining property by false pretenses ( 532, subd. (a)); one count of perjury ( 118, subd. (a)); and 11 counts of forgery ( 470, subd. (a)).
Under a plea agreement: (1) Montesinos pleaded guilty to one count each of caretaker theft from an elder (count 1), grand theft of personal property (count 33), use of personal identification information of another (count 4), and obtaining property by false pretenses (count 15); (2) the People dismissed the remaining charges; (3) Montesinos's sentence was set for three years; and (4) it was agreed that restitution should include all funds in the Schwab Family Exemption Trust and the Marital Deduction Trust (together the Trust). Montesinos executed a Harvey waiver.
The court sentenced Montesinos to a three year prison term on count 1 and concurrent terms of two years each for counts 4, 15 and 33 and ordered him to pay restitution under section 1202.4, subdivision (f) as follows: $89,062.29 to various credit card companies; $25,200 to Dr. Gregory Schwab (Gregory), Margaret's adopted son, for lost wages; $16,128.45 to Gregory for attorney fees; $27,173.72 to the Trust for attorney fees; $13,855 to the Trust for a vehicle purchase; $6,476.64 to the Trust for auto insurance; $1,350 to the Trust for driving under the influence (DUI) fines; $6,159.36 to the Trust for medical insurance; $10,000 to the Trust for a missing wedding ring set; $14,261.59 to the Trust for storage fees; $109,800 to the Trust for the fair market rent of a condominium; $35,000 to the Trust for the loss of value in a retirement facility "buy in" for Margaret; and $162,508.37 to the Trust for trustee fees, trustee attorney fees, independent contractor fees, and additional professional fees. Defendant appeals, contending the court abused its discretion by ordering restitution for: (1) attorney fees not authorized by section 1202.4; (2) Gregory's lost wages at a rate not supported by substantial evidence and for hours not statutorily authorized; and (3) miscellaneous items where the ordered amounts and/or the required nexus between his criminal conduct and the economic loss were not supported by substantial evidence.
Court conclude the court abused its discretion by ordering restitution for the replacement value of the wedding ring set because there was insufficient evidence to establish the value of that property. We therefore modify the judgment to reflect a reduction in the total restitution order by $10,000. In all other respects, the judgment is affirmed.
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