People v. Adkisson CA1/5 ( 2014 )

Filed 9/15/14 P. v. Adkisson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A140321
v.
GARY W. ADKISSON, (Napa County
Super. Ct. No. CR155130)
Defendant and Appellant.
Defendant Gary W. Adkisson was ordered to pay over $2 million in direct victim
restitution after pleading no contest to felony counts arising from his involvement in a
fraudulent investment scheme. He appeals from an order modifying his probation to
require that he apply a tax refund he later received to the previously ordered restitution.
His court-appointed counsel has filed a brief raising no issues, but seeking our
independent review of the record pursuant to People v. Wende (1979) 25 Cal. 3d 436
(Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We find no arguable
issues and affirm.
I. BACKGROUND
John Stewart managed an investment fund known as Cornerstone Income Fund.
After soliciting money from several individuals, he invested the proceeds into
defendant’s business, Pro-Action Concepts, which purportedly was developing medically
based fitness centers throughout the country. When the investors were advised their
money had been lost, the matter became the subject of a criminal investigation and the
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Napa County District Attorney filed a complaint charging defendant and Stewart with
multiple felony counts.
On May 17, 2011, defendant entered a no contest plea to grand theft (Pen. Code,
§ 487, subd. (a)), making a misleading statement in the offer or sale of a security (Corp.
Code, § 25401), theft from an elder (Pen. Code, § 368, subd. (d)), offer or sale of an
unregistered security (Corp. Code, § 25110), and operation of a scheme or artifice in the
sale of a security (Corp. Code, § 25541). He admitted the amount of the loss in
connection with two of the counts exceeded $500,000. (Pen. Code, § 186.11,
subd. (a)(2).) Under the terms of the plea agreement, the court would impose an
aggregate term of 13 years, four months in prison, but suspend execution of that sentence
and place defendant on probation conditioned on his serving one year in the county jail
and paying direct victim restitution in an amount totaling $2,763,000.1
At the sentencing hearing held August 5, 2011, the court placed defendant on
probation as called for under the plea agreement and ordered him to pay $2,763,000 in
restitution proportionately to all victims. On December 3, 2012, the court ordered
defendant to make monthly restitution payments of $250 to the Cornerstone Victims’
Association. On July 25, 2013, the probation department filed a petition to modify the
terms of probation based on defendant’s receipt of a tax refund from the years
2005-2007, of which his share was $58,191.19. The probation officer indicated
defendant was willing to increase his monthly restitution payments to $1000, and
recommended the court order the modification. The prosecutor filed a response urging
the court to order defendant to pay the full $58,191.19 to the victims.
The court ordered the funds from the tax return frozen. After hearing argument, it
issued an order requiring those funds to be released from the frozen bank account and
paid to the Cornerstone Victims’ Association. Defendant appeals this order.
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Codefendant Stewart also entered a plea and was ordered jointly and severally
liable for the full amount of restitution. He is not a party to this appeal.
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II. DISCUSSION
As required by People v. Kelly (2006) 40 Cal. 4th 106, 124, we affirmatively note
appointed counsel has filed a Wende/Anders brief raising no issues and defendant, having
been advised of his right to file a supplemental brief, has not filed one. We have
independently reviewed the entire record for potential error and find none.
California crime victims have a constitutional and statutory right to receive full
restitution for economic losses suffered as a result of a defendant’s criminal conduct.
(Cal. Const., art. I, § 28, subd. (b)(13); Pen. Code, § 1202.4, subds. (a)(1), (a)(3)(B)
& (f).) When a defendant is placed on probation, restitution is authorized as a condition
of probation. (Pen. Code, § 1203.1, subd. (a)(3); People v. Anderson (2010) 50 Cal. 4th
19, 27.) A court may modify a probation condition in the absence of any probation
violation so long as there is a change in circumstances. (People v. Cookson (1991)
54 Cal. 3d 1091, 1095-1096.) The trial court did not abuse its discretion in modifying
defendant’s probation by directing him to pay the amount of his tax refund toward the
previously ordered victim restitution. (See People v. Balestra (1999) 76 Cal. App. 4th
57, 63 [abuse of discretion standard].)
It does not matter whether the money from the tax refund had any connection to
the crimes in this case. “[A] defendant’s obligation to pay restitution is a general
obligation and not one limited to the value of assets and property connected with the
crime.” (People v. Semaan (2007) 42 Cal. 4th 79, 87.)
We are satisfied defendant’s appointed attorney has fully complied with the
responsibilities of appellate counsel and that no arguable issues exist. (Smith v.
Robbins (2000) 528 U.S. 259, 283.)
III. DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.
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