People v. Moultry CA2/6 ( 2021 )

Filed 9/10/21 P. v. Moultry CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309293
(Super. Ct. No. 16F-02040)
Plaintiff and Respondent, (San Luis Obispo County)
v.
KEITH H. MOULTRY,
Defendant and Appellant.
Keith H. Moultry appeals an order imposing restitution
following his conviction for identity theft (Pen. Code, § 530.5,
subd. (a))1, identifying information theft (id., subd. (c)(2)), and
false personation (§ 529, subd. (a)(3)). The trial court sentenced
him to an aggregate prison term of two years.
After a restitution hearing, the court ordered Moultry to
pay $2,230 to Galileo Surgery Center (Galileo) for the cost of a
“human resource consultant background check.” A background
check revealed that Moultry had applied for employment with
1 All statutory references are to the Penal Code.
Galileo using the name of another person. We conclude, among
other things, that the court did not err by issuing the restitution
order. We affirm.
FACTS
Moultry applied for a job with Galileo, a surgery center,
and he was hired. About a week later, Judith Smith, “a
consultant as a Human Resources agent for [Galileo],” told the
police that her investigation of Moultry revealed that he used “a
fraudulent name, fraudulent social security card, and a
fraudulent Radiologic certificate to gain employment.” He had
used the name and identity of another person, “K.M.,” on his
employment application.
Moultry told police, “I falsely represented myself to get a
job.”
The People filed an information alleging Moultry had
committed the felony offenses of: 1) identity theft (§ 530.5, subd.
(a)) in which he “unlawfully used that information for an
unlawful purpose” (count 1); 2) identifying information theft (id.,
subd. (c)(2)) (count 2); and 3) false personation (§ 529, subd.
(a)(3)) (count 3).
Moultry pled no contest to these three counts.
K.M. did not submit a request for restitution.
But Galileo submitted a restitution request form “requesting
restitution in the amount of $2,230.00 for the cost of a human
resource consultant to perform the background check.”
At Moultry’s restitution hearing, the probation report
requested restitution for Galileo. Moultry’s counsel objected. He
said, “I don’t have any evidence.” Counsel said Galileo was an
“indirect victim,” not a “direct victim.” K.M. is the person “whose
identity was stolen.” “My understanding is that [Galileo] hires a
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[human resources] consultant to perform background checks on
all of their employees.”
The trial court granted the request for restitution to Galileo
for $2,230. It said “the crime was discovered” as a result of the
background check. The court found Galileo is “an appropriate
victim.”
DISCUSSION
Moultry contends “[t]he one and only direct victim at the
time of the theft offenses was the owner of the identification,
K.M.,” and “K.M. filed no request for restitution.” Moultry claims
the trial court consequently erred by issuing its restitution order.
We conclude Galileo was a direct victim and entitled to
restitution.
“There is ‘a broad constitutional mandate of California
Constitution, article 1, section 28, subdivision (b), that restitution
must be imposed “in every case . . . in which a crime victim
suffers a loss . . . .” ’ ” (People v. Kelly (2020) 59 Cal.App.5th
1172, 1178.) “The restitution statute allows for recovery of a
broad variety of economic losses that are incurred as a result of
the defendant’s criminal conduct. (§ 1202.4, subd. (f)(3).)”
(People v. Keichler (2005) 129 Cal.App.4th 1039, 1046.)
“ ‘[A] trial court may compensate a victim for any economic
loss which is proved to be the direct result of the defendant’s
criminal behavior . . . .’ ” (People v. Kelly, supra, 59 Cal.App.5th
at p. 1179.) “Under the restitution statute, ‘[a] victim’s
restitution right is to be broadly and liberally construed.’ ” (Id. at
p. 1180.) “ ‘A restitution order is reviewed for abuse of discretion
and will not be reversed unless it is arbitrary or capricious.’ ” (Id.
at p. 1181.)
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Moultry concedes that he “obtained a fraudulent certificate
qualifying him for the job” with Galileo. He argues Galileo is not
a victim because “[i]t would have been regular business conduct”
for Galileo “to check [a] new [employee’s] background.”
We agree with the People that Galileo was a victim of
Moultry’s crime because it incurred a loss due to “the use of the
stolen information to obtain employment.” We agree.
Moultry committed his false identity crimes to target and
deceive Galileo. He used K.M.’s identity to get a job there. He
admitted, “I falsely represented myself to get a job.” He thus
“falsely represented [him]self” to his victim – Galileo. His
conduct involved a serious threat to Galileo because he used
K.M.’s “radiologic certificate” to obtain employment at the
surgery center.
A medical center that hires an unqualified person as a
result of that person’s criminal conduct is a crime victim. Galileo
had to verify Moultry’s qualifications for his job. Galileo
discovered Moultry’s criminal conduct and his deception in
gaining employment. “Restitution may include expenses incurred
to protect the crime victim from the defendant.” (People v. Kelly,
supra, 59 Cal.App.5th at p. 1180.) Galileo incurred such an
expense. It was a cost incurred for an investigation leading to
Moultry’s arrest and prosecution.
This case is analogous to People v. Kelly, supra, 59
Cal.App.5th 1172. The defendant used another person’s identity
to unlawfully penetrate a company. The company incurred costs
to investigate and determine that the defendant had committed
crimes against it and to assist in the prosecution of the
defendant. These costs were properly included in the restitution
order. Both the person whose identity was “stolen” and the
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targeted company were victims entitled to restitution for
economic losses caused by the defendant’s conduct. Here, as in
Kelly, both K.M. and Galileo are direct crime victims.
Moultry notes that only K.M. “was specifically identified in
the charges.” But all direct victims of a crime are entitled to
restitution “whether or not those victims are named in the
charging document.” (People v. Walker (2014) 231 Cal.App.4th
1270, 1276.) In the information, the People alleged Moultry
committed identity theft and he “used that information for an
unlawful purpose.” The unlawful purpose was using the
information to obtain the Galileo job. The People said Moultry
committed the identifying information theft crime “with the
intent to defraud.” Moultry defrauded Galileo.
Moultry’s reliance on People v. Birkett (1999) 21 Cal.4th
226 is misplaced. There the court said, “Nothing indicates the
electorate intended to encompass each and every economic
consequence that might incidentally be incurred by persons or
entities far removed from the crime itself.” (Id. at p. 244, italics
added.) But Galileo was not removed from the crime; it was the
direct target of it. Moultry admitted his sole purpose of
committing the crimes was to obtain employment from Galileo.
The police investigation centered on Moultry’s use of the false
documents at Galileo. The prosecutor said the background check
led to the discovery of the crime.
Moultry speculates that Galileo did not suffer an economic
loss because it routinely conducts background checks on all
applicants for employment. Moultry did not present evidence to
support this claim. The People note, had Moultry “not applied for
employment using a fraudulent identity and credentials, Galileo
would not have expended resources to verify [his] information.”
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Even if employers find a benefit for paying for background checks
for legitimate applicants, that does not mean they should have to
bear those costs after being criminally victimized by a counterfeit
applicant.
To deny restitution to Galileo would force it to suffer the
economic loss for incurring these costs. “That would mean the
victim would incur the losses instead of the one whose criminal
conduct caused them.” (People v. Kelly, supra, 59 Cal.App.5th at
p. 1180.) This undermines the purpose of the restitution laws.
Galileo presented its statement of $2,230 in economic losses
because of Moultry’s conduct. Because of that, “the burden
[shifted] to the defendant to prove by a preponderance of the
evidence that the loss is other than that claimed.” (People v.
Selivanov (2016) 5 Cal.App.5th 726, 788.) Moultry did not meet
this burden because he presented no evidence at the restitution
hearing. (People v. Keichler, supra, 129 Cal.App.4th at p. 1048
[“Given defendant’s failure to offer any evidence to challenge any
of the amounts presented, the trial court did not abuse its
discretion in awarding those amounts” (italics added)].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. PERREN, J.
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Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Jolene Larimore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy
Attorneys General, for Plaintiff and Respondent.
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