People v. Artykov CA1/3 ( 2022 )

Filed 5/20/22 P. v. Artykov CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
THE PEOPLE,
Plaintiff and Respondent,
A159613
v.
AZIZ ARTYKOV, (Contra Costa County
Super. Ct. No. 51712447)
Defendant and Appellant.
Aziz Artykov appeals from a trial court order requiring him to pay
victim restitution to AvalonBay Communities, Inc. (Avalon) pursuant to
Penal Code section 1202.4.1 We affirm.
BACKGROUND
Avalon owned an apartment complex in Walnut Creek and allocated
a percentage of the apartments to affordable housing. Avalon employee
Matthew McVicker oversaw the affordable housing program and maintained
the applicant waitlist. In 2010, Artykov moved into an apartment at the
complex. Thereafter, Artykov began asking McVicker about the waitlist and
the availability of affordable apartments. Initially, Artykov asked McVicker
Undesignated statutory references are to the Penal Code. Our factual
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recitation is taken in part from our unpublished opinion in Artykov’s appeal
from his conviction. (People v. Artykov (Oct. 29, 2020, A154379).)
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to put applicants at the top of the waitlist; eventually, Artykov gave
McVicker money to bypass the waitlist altogether. When an affordable
apartment became available, Artykov provided McVicker with a name. That
person would complete an application, get approved, and move into the
apartment. Artykov gave McVicker more than $1,000 to place numerous
tenants who did not qualify for below-market rent in affordable apartments.
For individuals seeking affordable apartments, Artykov demanded a one-time
payment of a significant sum of money, or the ability to sublet their
apartment for a profit.
When Avalon discovered Artykov’s scheme in 2016, it audited the
affordable housing program and discovered that at least nine tenants were
not eligible for below-market rent. Avalon gave these tenants a choice: they
could accept market-rate apartments or move out. Four tenants who
accepted market-rate apartments were subsequently evicted for nonpayment
of rent. Avalon incurred $65,000 in attorney fees to evict those tenants.
Shortly thereafter, several tenants who obtained affordable apartments
through Artykov’s criminal scheme filed complaints with the Department of
Fair Employment and Housing alleging Avalon discriminated against them
and denied them housing based on national origin (discrimination
complaints). In an effort to perpetuate his fraudulent scheme, Artykov
orchestrated the filing of the discrimination complaints and represented the
tenants at a mediation with Avalon.
In 2018, the jury convicted Artykov of felony commercial bribery
(§ 641.3, subds. (a), (c)). The probation report described the expenses Avalon
incurred as a result of Artykov’s criminal conduct. At sentencing, Avalon
offered a victim impact letter estimating it incurred over $300,000 in “direct
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costs” from Artykov’s fraudulent scheme. The trial court placed Artykov on
probation and ordered him to spend one year in custody on home detention.
Thereafter, the prosecution sought restitution for expenses incurred by
Avalon that were “directly related” to Artykov’s “bribery scheme.” Among
them were $149,486.20 in attorney fees incurred by Avalon to hire outside
counsel to: (1) investigate Artykov’s wrongdoing, report it to law enforcement,
and cooperate with the prosecution; (2) evict tenants who improperly
obtained affordable apartments through Artykov’s criminal scheme; and
(3) defend the discrimination complaints. The restitution request attached
a letter from Avalon describing the expenses and listing the attorney fees and
costs incurred.
Artykov did not file a written opposition and did not appear at the
restitution hearing. At the hearing, Avalon’s counsel described her role in
assisting the prosecution. Counsel also asserted Avalon incurred attorney
fees to evict unqualified tenants and defend the discrimination complaints
and argued Avalon would not have incurred the expenses absent Artykov’s
criminal conduct. In response, defense counsel argued the attorney fees
incurred by Avalon were unnecessary and excessive, and asserted the fees
incurred to evict the tenants and defend the discrimination complaints were
not “directly connected to the criminal conduct.” But defense counsel did not
question Avalon’s counsel about the fees, nor offer evidence disputing the
reasonableness of the fees.
In September 2018, the trial court ordered Artykov to pay restitution of
$200,439.51, which included $149,486.20 in attorney fees. The court recited
the evidence it considered, including trial testimony, the probation report,
Avalon’s victim impact statement, and the prosecution’s restitution request
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and supporting documentation. As relevant here, the court determined
Avalon made a prima facie showing it incurred reasonable attorney fees as
a result of Artykov’s criminal conduct, and that Artykov failed to rebut that
showing. The court observed that while Artykov “argued generally that some
of the attorney’s fees should not be attributed to [his] fraudulent scheme, he
presented no evidence that any of the claimed attorney’s fees were spent on
non-recoverable expenses.” The court also awarded restitution for “economic
losses” incurred by Avalon to evict two unqualified tenants who obtained
affordable apartments “due to [Artykov’s] fraudulent conduct.”
DISCUSSION
California law mandates an award of victim restitution “ ‘in every
case . . . in which a crime victim suffers a loss, unless compelling and
extraordinary reasons exist to the contrary.’ ” (People v. Giordano (2007)
42 Cal.4th 644, 652.) The restitution statute — section 1202.4 — “ ‘allows for
recovery of a broad variety of economic losses . . . incurred as a result of the
defendant’s criminal conduct,’ ” (People v. Kelly (2020) 59 Cal.App.5th 1172,
1179 (Kelly)) including “[a]ctual and reasonable attorney’s fees and other
costs of collection accrued by a private entity on behalf of the victim.”
(§ 1202.4, subd. (f)(3)(H).)
“ ‘Restitution is “intended to make the victim whole.” ’ [Citation.] ‘The
restitution order “shall be of a dollar amount sufficient to fully reimburse the
victim” for economic losses caused by the defendant’s criminal conduct.’ ”
(People v. Marrero (2021) 60 Cal.App.5th 896, 906.) A trial court has broad
discretion in setting the amount of restitution and may use any rational
method to fix the amount. (Ibid.) A restitution award must be affirmed so
long as it is supported by a “ ‘ “factual and rational basis.” ’ ” (Ibid.) Put
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another way, a restitution order “ ‘will not be reversed unless it is arbitrary
or capricious.’ ” (Kelly, supra, 59 Cal.App.5th at p. 1181.)
Artykov challenges the restitution order on three grounds. First,
Artykov contends Avalon did not make a prima facie showing the attorney
fees incurred were “reasonable.” This is so, Artykov argues, because Avalon
did not provide detailed time records in support of the restitution request.
But no such evidence was required. There “ ‘is no legal requirement that an
attorney supply billing statements to support a claim for attorney fees.’ ”
(Kelly, supra, 59 Cal.App.5th at pp. 1181–1183 [section 1202.4 does not
“ ‘require any particular kind of proof’ ”].) Accordingly, a prima facie case for
restitution may be based on the victim’s testimony on, or other claim
or statement of, the amount of economic loss. (People v. Prosser (2007)
157 Cal.App.4th 682, 690–691; People v. Ortiz (1997) 53 Cal.App.4th 791,
798.)
Here, Avalon made a prima facie showing it incurred attorney fees as
a result of Artykov’s criminal conduct. In connection with its restitution
request, Avalon summarized the legal work performed by outside counsel;
Avalon also listed attorney fees paid to outside counsel and the costs incurred
to evict unqualified tenants. And at the restitution hearing, counsel for
Avalon explained how Artykov’s conduct during the eviction proceedings
resulted in significant fees.2 The trial transcript and the probation report
also contained information about the attorney fees Avalon incurred. Thus,
This case bears no resemblance to In re K.F. (2009) 173 Cal.App.4th
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655. There, the appellate court reversed medical costs awarded as restitution
because the victim offered no evidence he incurred the costs. (Id. at pp. 662–
665.) Here, by contrast, Avalon offered evidence it paid attorney fees totaling
$149,486.20.
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the record supports the trial court’s determination that these fees were
reasonable.
Once Avalon made this showing, it was up to Artykov to demonstrate
the amount was unreasonable. (Kelly, supra, 59 Cal.App.5th at p. 1184.)
Artykov failed to submit evidence in opposition to the restitution request.
Moreover, to the extent he complains that a more detailed breakdown of
Avalon’s attorney fee expenses should have been provided, the record
discloses he neglected to request such a breakdown and he did not question
counsel for Avalon as to the reasonableness of the fees. (Id. at p. 1185.) In
sum, Artykov failed to establish the attorney fee award was unreasonable or
excessive. (People v. Grundfor (2019) 39 Cal.App.5th 22, 30–31 [attorney fee
award of $178,000 was reasonable]; People v. Marrero, supra, 60 Cal.App.5th
at pp. 908–909 [affirming award of $350,000 in attorney fees].)
Second, Artykov asserts the attorney fees Avalon incurred to evict the
unqualified tenants did not arise from his criminal conduct. The parties
agree a trial court “may only impose restitution for economic losses incurred
‘as a result of’ the defendant’s criminal conduct. [Citation.] Put differently,
restitution may be imposed in such cases only to the extent the defendant’s
criminal conduct played a ‘substantial factor’ in causing the victim’s
economic loss. [Citation.] To be a substantial factor, the defendant’s criminal
conduct must be more than a ‘trivial or remote’ factor contributing to the
victim’s loss, but it need not be the ‘sole’ cause of the loss.” (In re S.O. (2018)
24 Cal.App.5th 1094, 1101.)
That standard was met here. The tenants at issue obtained their
apartments because Artykov bribed an Avalon employee. Avalon was forced
to evict certain tenants because they refused — with Artykov’s assistance and
encouragement — to vacate their wrongfully obtained apartments. Thus, it
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was reasonable for the trial court to conclude attorney fees incurred to evict
these tenants were “proper, necessary, and a logical result of [Artykov’s]
criminal conduct.” (People v. Lyon (1996) 49 Cal.App.4th 1521, 1525; People
v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409–1410 [restitution award
properly included fees and costs incurred by victim to recover embezzled
funds].) The court was also within its discretion to conclude the tenants’
refusal to vacate the wrongfully obtained apartments was not an independent
intervening cause, as the record suggests it was foreseeable that unqualified
tenants who paid Artykov to obtain their apartments through his criminal
scheme would refuse to vacate those apartments. (People v. Foalima (2015)
239 Cal.App.4th 1376, 1397.)
Third, Artykov insists the trial court erred by awarding attorney fees
related to Avalon’s defense of the discrimination complaints. We find the
factual foundation for Artykov’s argument lacking. (People v. Weber (2013)
217 Cal.App.4th 1041, 1057 [rejecting argument premised on improbable
reading of the record].) The prosecution made a brief reference to the
discrimination complaints in its restitution request, and the parties discussed
the discrimination complaints at the restitution hearing. But the
documentation Avalon provided in support of the restitution request did not
indicate the attorney fees incurred were for the defense of the discrimination
complaints, and the court’s order does not appear to award attorney fees
incurred to defend those complaints. Thus, the argument is premised on
a misreading of the record, and we reject it on that basis.
Having reached this conclusion, we need not address Artykov’s related
contention that an award of attorney fees related to the defense of the
discrimination complaints “chills the exercise of statutory and constitutional
rights” except to note that the argument was not raised in the trial court.
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(People v. McCullough (2013) 56 Cal.4th 589, 593 [constitutional rights may
be forfeited by failing to timely assert the right in the trial court].)
In sum, we conclude Artykov has not demonstrated the trial court
abused its discretion by awarding Avalon restitution for attorney fees
incurred as a result of Artykov’s criminal conduct. (Kelly, supra,
59 Cal.App.5th at p. 1188; People v. Mearns (2002) 97 Cal.App.4th 493,
502–503.)
DISPOSITION
The September 2018 restitution order is affirmed.
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A159613
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