People v. Kelly CA2/6 ( 2020 )

Filed 12/23/20 P. v. Kelly 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301916
(Super. Ct. No. 2016037654)
Plaintiff and Respondent, (Ventura County)
v.
MICHAEL PATRICK KELLY,
Defendant and Appellant.
Michael Patrick Kelly appeals an order awarding
restitution to Kelly’s crime victims following his conviction for
false personation of another (Pen. Code,1 § 529, subd. (a)(3))
(count 1); unauthorized use of personal identifying information of
another (§ 530.5, subd. (a)) (count 2); and disobeying a court order
(§ 166, subd. (a)(4)) (count 3). We conclude, among other things,
that the trial court properly awarded restitution to Kelly’s
victims for attorney fees and costs they incurred as a result of
Kelly’s conduct. We affirm.
1 All statutory references are to the Penal Code.
FACTS
Charles Schwab Co., Inc. (Schwab) terminated Kelly’s
contract as an “independent investment advisor.” (People v. Kelly
(Dec. 3, 2019, B296697) [nonpub. opn.].) In 2013, Schwab
obtained legal counsel and obtained a workplace violence
restraining order to protect its employees from Kelly’s
threatening behavior. (Ibid.) The trial court ordered Kelly to
stay 100 yards away from any of Schwab’s offices and prohibited
him from contacting Schwab’s employees.
Kelly repeatedly violated the restraining order by
contacting Schwab employees and pretending to be Craig Cross,
an “advisor with a firm of approximately four billion under
management.” (People v. Kelly, supra, B296697.) Cross did not
give Kelly permission to use his name, job title, or his company’s
name for any purpose. Kelly used this false identity pretending
to be Cross to contact or meet with Schwab employees that the
trial court had prohibited him from contacting. He used it to
penetrate Schwab’s business and obtain information he was not
authorized to receive. Schwab hired a law firm to protect itself
and its employees from Kelly while Kelly was engaging in a long
course of conduct to unlawfully target Schwab. Those lawyers
investigated and proved that Kelly had violated the restraining
order, and they provided evidence to law enforcement to
prosecute Kelly.
On December 3, 2019, we affirmed Kelly’s conviction for the
crimes of false personation of another, unauthorized use of
personal identifying information, and disobeying a court order.
(People v. Kelly, supra, B296697.)
The trial court held a hearing to determine restitution for
the economic losses the victims of Kelly’s crimes (Cross and
2
Schwab) had suffered. For Cross, the People sought “$905.00, as
reimbursement for attorney’s fees associated with being a victim
of identity theft.” Cross submitted “a Victim Loss statement” to
support his claim for reimbursement.
Schwab sought reimbursement for attorney fees and costs
it incurred: 1) in seeking a restraining order against Kelly, 2) for
investigating and proving Kelly had secretly violated the
restraining order, and 3) for providing evidence to law
enforcement and for assisting law enforcement in prosecuting
Kelly. Schwab’s request for restitution was supported by the
declaration of its lawyer with billing records, a prosecutor’s
written statement, two letters containing statements of Schwab’s
loss submitted to the probation department, and a probation
memorandum.
The trial court ordered restitution for Cross in the amount
of $905 and restitution for Schwab in the amount of $221,140.40.
DISCUSSION
Restitution
I
Kelly contends the restitution awards to Schwab and Cross
for attorney fees and costs must be set aside because the awards
were not related to litigation instituted to collect money to
reimburse Schwab and Cross for economic losses. We disagree.
Schwab sought reimbursement for: 1) $62,520.62 for
attorney fees and costs to obtain a restraining order to protect
Schwab employees from Kelly’s threatening behavior; and 2)
$221,140.40 in attorney fees and costs it incurred for its counsel
to investigate and prove that Kelly had engaged in a secret
unlawful course of conduct to violate that restraining order.
3
Cross sought $905 as “reimbursement for attorney’s fees
associated with being a victim of identity theft.”
The trial court awarded restitution to Cross for $905 and
restitution to Schwab for $221,140.40. It did not award Schwab
restitution for the attorney fees and costs it incurred for
obtaining the restraining order.
There is “a broad constitutional mandate of California
Constitution, article I, section 28, subdivision (b), that restitution
must be imposed ‘in every case . . . in which a crime victim suffers
a loss . . . .’ ” (People v. Giordano (2007) 42 Cal.4th 644, 655.)
Kelly contends the restitution awards made by the trial
court were not authorized by the restitution statute. (§ 1202.4.)
The People respond those fees and costs were proper
because they were economic losses actually incurred by Schwab
and Cross as victims of Kelly’s criminal conduct. We agree.
“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.) Section 1202.4,
subdivision (f)(3) provides, “To the extent possible, the restitution
order shall be prepared by the sentencing court, shall identify
each victim and each loss to which it pertains, and 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, including, but not limited to,
all of the following . . . .” (Italics added.) The statute then lists
several examples of economic losses.
With respect to attorney fees, one example in the statutory
list refers to “[a]ctual and reasonable attorney’s fees and other
4
costs of collection accrued by a private entity on behalf of the
victim.” (§ 1202.4, subd. (f)(3)(H).)
Kelly contends the attorney fees and costs the trial court
awarded do not fall within that example and they are therefore
not authorized as economic losses that may be ordered as
restitution.
The People respond that the list of examples in the statute
is not an exclusive list of economic losses. They claim the trial
court could reasonably infer the amounts it awarded were
economic losses in the form of attorney fees and costs that were
incurred by Schwab and Cross as a direct result of Kelly’s
criminal conduct. We agree.
In Giordano, our Supreme Court ruled that “the
constitutional and legislative intent to provide for all crime
victim losses, and the expressly nonexclusive list of categories of
loss included in the direct restitution statute” refuted a claim
that the courts had to “read into that statute an implied
limitation on restitution” to only award reimbursement for those
statutory examples. (People v. Giordano, supra, 42 Cal.4th at
p. 660.)
“Because the statute uses the language ‘including, but not
limited to’ these enumerated losses, 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, even if not specifically
enumerated in the statute.” (People v. Keichler, supra, 129
Cal.App.4th at p. 1046, italics added.)
The People asked the trial court to award restitution to
Schwab and Cross because “each amount of restitution requested
in this case is appropriate as each reasonably relates to the crime
defendant was convicted of.” The attorney fees and costs Schwab
5
actually incurred as a victim of Kelly’s criminal conduct were
supported by the declaration of Schwab’s lawyer, Robyn
Crowther. Schwab hired counsel to protect the company and its
employees from Kelly while Kelly was engaging in a secret,
unlawful course of conduct to harm Schwab.
Under the restitution statute, “[a] victim’s restitution right
is to be broadly and liberally construed.” (People v. Mearns
(2002) 97 Cal.App.4th 493, 500.) “[T]he overall history of the
amendments to section 1202.4 reflects a legislative intent to
enlarge, not restrict, the availability of restitution.” (People v.
McCarthy (2016) 244 Cal.App.4th 1096, 1107.)
Restitution may include expenses incurred to protect the
crime victim from the defendant. (People v. Mearns, supra, 97
Cal.App.4th at p. 501.) Awarding restitution to Schwab because
it hired counsel to protect itself from a criminal course of conduct
falls within the scope and remedial purpose of section 1202.4.
Those fees and costs were “ ‘a logical result of appellant’s criminal
conduct.’ ” (People v. Maheshwari (2003) 107 Cal.App.4th 1406,
1410.) Failure to award them as restitution would be “to fail to
fully reimburse” the victim. (Ibid.) That would mean the victim
would incur the losses instead of the one whose criminal conduct
caused them. These were consequently economic losses that may
be awarded as restitution under the statute. (People v. Keichler,
supra, 129 Cal.App.4th at p. 1046.)
Kelly notes these were not attorney fees to collect damages
against him. But they were legal fees and costs in response to his
on-going criminal conduct. They were more important for the
protection of the crime victim’s current safety than merely suing
for damages after the fact. They included costs for immediately
protecting Schwab from Kelly, investigating his conduct,
6
obtaining evidence, and assisting in the criminal prosecution. A
business that is a crime victim, and has incurred “out-of-pocket
expenses assisting” law enforcement “in the investigation and
prosecution” of the defendant, has incurred “economic loss” and is
entitled to restitution. (People v. Ortiz (1997) 53 Cal.App.4th 791,
797.)
Kelly contends some of the attorney fees involved time
spent by Schwab’s attorneys to attempt to hold him in contempt
in the “civil” workplace violence restraining order case. He notes
that case was ultimately stayed after his arrest. But that
attorney time was the result of Kelly’s “criminal conduct” in
violating the restraining order. That was the same conduct that
was involved in Kelly’s criminal case. The evidence that
Schwab’s attorneys obtained was helpful to the prosecution in the
criminal case.
Kelly cites People v. Fulton (2003) 109 Cal.App.4th 876.
But that case is distinguishable. There the court in interpreting
the law, as it was in 2003, said that because the Legislature
determined that noneconomic damages could not be awarded as
restitution, “it rationally follows that the Legislature did not
perceive a need for a victim to recover attorney fees incurred to
collect noneconomic damages . . . .” (Id. at p. 884, italics added.)
But here the victims are not seeking noneconomic damages; they
suffered economic damages. Fulton did not involve the type of
attorney fees incurred here – fees spent to protect the crime
victim from the criminal. Moreover, Fulton was decided prior to
our Supreme Court’s decision in Giordano. The economic
damages the trial court awarded here are consistent with the
Giordano standard. Whether described as attorney fees or costs,
they necessarily involved money spent and incurred because of
7
Kelly’s unlawful conduct. They consequently constitute “an
economic loss incurred as the result of a criminal act.” (People v.
Giordano, supra, 42 Cal.4th at p. 661.)
II
Kelly contends that Schwab failed to provide
documentation allowing the trial court to make an informed
determination about whether the amount of attorney fees Schwab
requested was reasonable.
A “ ‘hearing to establish the amount of restitution does not
require the formalities of other phases of a criminal
prosecution.’ ” (People v. Keichler, supra, 129 Cal.App.4th at
p. 1048.) “Section 1202.4 does not, by its terms, require any
particular kind of proof.” (People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542-1543.) “A restitution order is reviewed
for abuse of discretion and will not be reversed unless it is
arbitrary or capricious.” (Id. at p. 1542.)
Schwab’s Documentation – Counsel’s Declaration
Kelly contends Schwab failed to present documentation to
sufficiently identify the legal services and costs it paid. But
Schwab presented proof of the exact amount of money Schwab
paid for: 1) legal services and costs for obtaining the restraining
order, and 2) legal services and costs incurred after the
restraining order issued. Schwab’s attorney Crowther submitted
a declaration that showed Schwab paid $62,520.62 for legal fees
and costs to obtain the restraining order against Kelly to protect
Schwab’s employees from Kelly’s threatening behavior. But, to
Kelly’s benefit, the trial court did not award Schwab those fees
and costs for obtaining the restraining order.
Crowther said her firm also provided legal services to
Schwab to: 1) investigate Kelly’s secret attempts to violate the
8
restraining order and unlawfully penetrate Schwab’s business, 2)
pursue contempt, and 3) assist law enforcement and the
prosecutor in prosecuting Kelly. She said Schwab paid
$221,140.40 for those post-restraining order legal fees and costs.
Evidence showing what a crime victim actually paid as an
attorney fee is at least “ ‘prima facie evidence of a loss entitling
[the victim] to compensation.’ ” (People v. Grundfor (2019) 39
Cal.App.5th 22, 31.)
Crowther described the nature of those legal services and
costs. She declared that she and two other attorneys “prepared
papers to ask the Superior Court to find Mr. Kelly in contempt of
the restraining order.” Some of the costs incurred included hiring
“a voice recognition expert” to “evaluate telephone recordings of
calls that Mr. Kelly made in violation of the restraining order”
and “court reporter fees to transcribe those recordings.” Her firm
documented evidence to show Kelly was in contempt of the
restraining order. After Kelly was arrested, that evidence was
shared with law enforcement and they “assisted [law
enforcement’s] investigation as requested.” Crowther declared,
“Schwab incurred attorneys’ fees and other costs to pursue a
finding of contempt against Mr. Kelly and to participate in the
criminal investigation conducted into his actions.” In Schwab’s
written request for restitution, Crowther said fees and costs
included: 1) “travel expenses for” witnesses, and 2) “attorneys’
fees required to prepare the witnesses to testify in a criminal
proceeding when there were still pending civil actions between
Schwab and Mr. Kelly to which those witnesses’ testimony was
relevant.”
Crowther said her firm’s efforts to prove Kelly was in
contempt and “to participate in the criminal investigation
9
conducted into his actions” involved several years of legal services
from “late 2014” to October 2018. It included her work, the work
of her partner, two associates, a paralegal, and three litigation
“[s]upport personnel.” Crowther’s declaration included the
“service periods” for services provided for Schwab, and the
amount billed for legal services and costs for each of those time
periods. The dates of legal services performed for those service
periods included April 2013, October 2014 through December
2014, January 2015 through July 2015, September 2015, January
2016 through March 2016, May 2016, August 2016, October 2016,
January and February 2017, August 2017, October 2017, and
September 2018.
Billing Records
Crowther attached copies of billing invoices to Schwab.
Those billing invoices span pages 44 through 104 of the clerk’s
transcript. Kelly contends those documents were “conclusory”
and were not sufficiently detailed for an attorney fee award.
First, “there is no legal requirement that an attorney
supply billing statements to support a claim for attorney fees.”
(Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th
257, 269.) Thus, even had Crowther not attached any billing
statements, that would not preclude an attorney fee award. Here
the billing invoices were attached as exhibits to support
statements Crowther made in her declaration about the fees and
costs incurred and paid by Schwab.
Second, the standard of evidence at a restitution hearing
does not necessarily require a crime victim to produce detailed
billing records, receipts, or business invoices. (People v. Gemelli,
supra, 161 Cal.App.4th at p. 1542; People v. Prosser (2007) 157
Cal.App.4th 682, 692.) A victim’s loss statement submitted to
10
probation may be sufficient to support a prima facie showing of
loss. (Gemelli, at p. 1544.) Here there were two letter statements
submitted to probation from Schwab’s lawyers. There was also
Crowther’s declaration. An under oath statement from a person
qualified to state facts about the economic loss the business
experienced may also be sufficient for a prima facie showing of
loss. Then the burden shifts to the defendant to show the loss is
less than the figure the crime victim presented. (People v. Sy
(2014) 223 Cal.App.4th 44, 63; Prosser, at p. 692.) The trial court
has substantial discretion to determine which party met their
respective burdens.
For determining attorney fees, “[a]ny rational calculation
method is permissible.” (People v. Grundfor, supra, 39
Cal.App.5th at p. 31.) “The law is clear . . . that an award of
attorney fees may be based on counsel’s declarations, without
production of detailed time records.” (Raining Data Corp. v.
Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) Billing
documentation is not required. (Mardirossian & Associates, Inc.
v. Ersoff, supra, 153 Cal.App.4th at p. 269.)
Here Schwab presented both the declaration of Crowther
and the billing invoices, and two statements submitted to the
probation department. Crowther was qualified to state facts
about the legal services she provided to Schwab and the amount
of money Schwab paid for those services. Crowther’s declaration
provided specific information for the court. It included the names
of the lawyers who provided legal services, their backgrounds and
experience, their hourly rates, and facts showing why those rates
were reasonable. She provided the names of the other members
of the staff of the firm who provided services and their service
period dates.
11
The Restitution Hearing
At the restitution hearing, Kelly’s counsel made legal
arguments challenging the billing invoices and the redactions.
But he did not produce, or ask to produce, any witnesses or
evidence. Crowther was present and prepared to testify.
The prosecutor asked Kelly’s counsel “if there’s . . . any
challenge to the foundation for these documents . . . . [Crowther]
is here and can lay that foundation.” (Italics added.) This
provided Kelly with an opportunity to question Crowther about
the invoices and the redactions. In her declaration, Crowther said
Schwab “incurred the full amount of those invoices to address Mr.
Kelly’s conduct.” She also created a chart in her declaration
showing the legal fees and costs Schwab incurred for each of the
“service periods” from April 2013 to September 2018 with a total
of $256,455 “fees” and $27,206.02 “costs.” She described the legal
services provided to Schwab. If Kelly disagreed with any of these
claims in her declaration, he had the opportunity to call her as a
witness, challenge them, and obtain more details. But Kelly’s
counsel did not request that Crowther testify. He only presented
legal arguments.
The decision to decline the opportunity to question
Crowther undermines Kelly’s claims about his lack of opportunity
to challenge the billing invoices and the legal fees in the trial
court. (People v. Prosser, supra, 157 Cal.App.4th at p. 692; see
also People v. Richardson (2008) 43 Cal.4th 959, 1011 [claim of
trial court error rejected where defendant had the opportunity to
question the relevant witness and declined to do so]; People v.
Holt (1997) 15 Cal.4th 619, 653; People v. Watson (1956) 46
Cal.2d 818, 829.)
12
Moreover, because Crowther established the amount of
legal fees and costs incurred, “it was up to appellant to
demonstrate this amount was unreasonable.” (People v. Pinedo
(1998) 60 Cal.App.4th 1403, 1406, italics added; see also People v.
Selivanov (2016) 5 Cal.App.5th 726, 788 [“the burden shifts to the
defendant to prove by a preponderance of the evidence that the
loss is other than that claimed”]; People v. Gemelli, supra, 161
Cal.App.4th at p. 1543 [defendant’s burden is “to disprove the
amount of losses claimed by the victim”].)
In Kelly’s brief that he filed for the restitution hearing, he
noted that in 2016 Crowther sent a letter to the probation office
requesting restitution for legal fees and costs for “at least
120,000.00” relating to the civil contempt proceedings. Crowther
claimed Schwab incurred costs: 1) “in excess of $20,000.00” for
preparing the application for civil contempt; 2) “at least another
$20,000.00” for the services of a voice recognition expert to verify
Kelly’s contacts with Schwab in violation of the restraining order;
and 3) “at least an additional $80,000.00” for expenses and
attorney fees associated with the days of hearings involved in the
contempt proceeding. These included travel expenses for Schwab
employees who testified and travelled from San Francisco,
Arizona, and Florida.
Kevin Lewis, another Schwab lawyer, sent a letter to the
probation department stating that, in addition to the fees and
costs detailed by Crowther’s letter, Schwab “incurred more than
$10,000 in additional costs to prepare witnesses for the criminal
trial and for them to travel to Ventura County from San
Francisco to testify.” Crowther’s declaration showed Schwab
incurred additional attorney fees and costs.
13
Kelly argued these fees and costs were excessive. But at
the restitution hearing, it is the defendant’s burden to prove “that
the amount claimed is excessive.” (People v. Weatherton (2015)
238 Cal.App.4th 676, 684.) Kelly did not show why he did not
call an expert witness to present evidence to contest the
reasonableness of these fees and costs. (People v. Cain (2000) 82
Cal.App.4th 81, 87.) At the end of the hearing, the trial court
informed counsel that it was taking the matter under submission
and it wanted to know if counsel would present evidence. Kelly’s
counsel indicated he would not introduce evidence. He said,
among other things, “[S]o I don’t want to litigate how much they
actually spent. I’m just saying I don’t know what it was for.”
(Italics added.) If Kelly believed Crowther’s declaration was not
“sufficiently detailed,” he “could have sought greater detail” by
calling her as a witness. (People v. Prosser, supra, 157
Cal.App.4th at p. 692.) The trial court also asked counsel if they
wanted the opportunity to have another restitution hearing.
Kelly’s counsel said “No.” “ ‘ “A defendant’s due process rights
are protected when [he or she has] notice of the amount of
restitution claimed . . . , and . . . has an opportunity to challenge
the figures . . . .” ’ ” (Ibid.) Kelly had both.
The amount of fees and costs involved services rendered
over a period of several years. Moreover, the trial court knew
how Kelly had targeted Schwab. It was in the best position to
determine whether the amount requested as restitution was
disproportionate given Kelly’s on-going pattern of criminal
conduct and Schwab’s need to hire counsel to protect itself and
assist in prosecuting Kelly.
14
Unfair or Unauthorized Procedures by Schwab’s Counsel?
Kelly contends Crowther “consciously chose not” to disclose
the unredacted billing invoices to the court. He claims this
deprived the trial court of an opportunity to review them and she
did not present any valid ground for their nondisclosure. He
argues that he was entitled to see all the unredacted billing
invoices.
Attorney-Client Privilege
But Crowther claimed the redactions were necessary to
protect attorney-client communications. Kelly suggests her claim
of privilege does not apply to her billings.
Not all the information contained in billing invoices is
“categorically privileged.” (Los Angeles County Bd. of Supervisors
v. Superior Court (2016) 2 Cal.5th 282, 299.) A billing invoice,
however, may contain privileged information that does not have
to be disclosed. This may include, among other things: 1)
information conveyed “ ‘for the purpose of . . . legal
representation’ ”; 2) informing the client “of the nature or amount
of work occurring in connection with a pending legal issue”; and
3) “aggregate figures describing the total amount spent on
continuing litigation during a given quarter or year.” (Id. at
p. 297.) It may also include “ ‘a legal opinion formed and the
advice given by the lawyer . . . .’ ” (City of San Diego v. Superior
Court (2018) 30 Cal.App.5th 457, 466.)
Where a billing is relevant for a court proceeding, counsel
may “separate those portions of a record subject to disclosure
from privileged portions.” (Los Angeles County Bd. of Supervisors
v. Superior Court, supra, 2 Cal.5th at p. 292; Layfayette
Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39
Cal.App.4th 1379, 1382 [party seeking attorney fees may redact
15
portions of billings protected by attorney-client privilege and does
not have to “waive the privilege to obtain fees”]; see also Banning
v. Newdow (2004) 119 Cal.App.4th 438, 454 [existence of
redactions did not mean appellant was “unable to challenge the
reasonableness of the fees”].) Crowther claimed she redacted
portions of the billing invoices because of her concern about
disclosure of confidential information to Kelly. Her firm had
provided legal services to protect Schwab from Kelly.
Crowther noted that confidential information related to
pending litigation is protected from disclosure. (Los Angeles
County Bd. of Supervisors v. Superior Court, supra, 2 Cal.5th at
p. 288.) In her declaration, she declared there was pending
litigation with Kelly. Kelly challenged that, but he did not
testify, present a declaration to dispute her factual claim, or
question Crowther. He consequently did not “develop the fullest
possible evidentiary record” to support his position. (Tudor
Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th
1422, 1433.) Kelly may not claim trial court error for not
determining the scope of the privilege because Kelly was offered
the opportunity to question the person claiming the privilege
(Crowther) and Kelly declined. (People v. Richardson, supra, 43
Cal.4th at p. 1011.)
Moreover, even if there was no pending litigation, the
result does not change. For closed cases, the “fee totals” in
billings may be disclosed. (County of Los Angeles Bd. of
Supervisors v. Superior Court (2017) 12 Cal.App.5th 1264, 1275.)
Here Kelly received the fee totals in the billings. He contends he
also was entitled to see the redacted communications between
Schwab’s counsel and Schwab in the billings which describe the
legal services provided for those fee totals. But “[b]illing entries
16
or portions of invoices that describe the work performed for a
client . . . fall directly in the ‘heartland’ protected by the privilege.”
(Id. at p. 1274, italics added.)
In addition, in restitution hearings, a crime victim who
submits bills to prove losses does not thereby waive privileged or
confidential information relating to the professional services
provided to the victim as a result of the crime. (People v. Garcia
(2010) 185 Cal.App.4th 1203, 1210, 1212; Layfaette Morehouse,
Inc. v. Chronicle Publishing Co., supra, 39 Cal.App.4th at p. 1382
[party may seek attorney fees using redactions without waiving
privileged communications].) Kelly has not shown why the trial
court could not find Crowther’s concern for confidentiality was
genuine.
Crowther was concerned about Kelly’s conduct directed at
her law firm. She noted that Kelly had recently called members
and former employees of her firm at their homes or on their
personal cell phones. She said, “Kelly’s refusal to accept
responsibility for his actions persists through this day and is
evident in the position he has taken with respect to contesting
Schwab’s restitution request.” (Italics added.)
The Offer for an In Camera Review
Kelly’s contention that Crowther was unfairly trying to
hide the unredacted billings is not correct. In Schwab’s victim
brief, Crowther said, “If the Court believes that it requires
additional information about the substance of the work that
attorneys and others performed, Schwab is willing to submit its
unredacted invoices to the Court for in camera review.” (Italics
added.) What she proposed was not unfair. It is a standard
procedure that a party claiming a privileged communication may
consent to use. (County of Los Angeles Bd. of Supervisors v.
17
Superior Court, supra, 12 Cal.App.5th at p. 1276; League of
California Cities v. Superior Court (2015) 241 Cal.App.4th 976,
990.) It provides a chance to test the scope of privilege and
preserve a record. It provided Kelly with the opportunity at the
hearing to request the court to review the unredacted invoices “to
determine if some protection is warranted.” (Costco Wholesale
Corp. v. Superior Court (2009) 47 Cal.4th 725, 740.)
Had Kelly made that request and had he questioned
Crowther, he could have potentially preserved a full record for
review. But Kelly did not take advantage of those opportunities.
We may not draw favorable inferences where the appellant could
have, but did not take all the steps necessary to preserve a more
complete record. (People v. Richardson, supra, 43 Cal.4th at
p. 1011 [defendant’s failure to question the witness claiming the
privilege constituted “acquiescence in the claim of privilege”];
People v. Holt, supra, 15 Cal.4th at p. 653; People v. Watson,
supra, 46 Cal.2d. at p. 829; People v. Garcia, supra, 185
Cal.App.4th at p. 1214; Tudor Ranches, Inc. v. State Comp. Ins.
Fund, supra, 65 Cal.App.4th at p. 1433.)
Kelly also had the opportunity to file counter-declarations
to challenge facts Crowther stated and place evidentiary facts in
issue. But he simply filed a brief with exhibits. But that was not
an evidentiary showing made under oath; and because he
produced argument instead of evidence at the hearing, the trial
court could reasonably infer he did not meet his burden to contest
Schwab’s economic loss. (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)]; People v. Pinedo, supra, 60 Cal.App.4th at
18
p. 1406.) The court could find Crowther’s declaration, the
billings, and the two statements Schwab submitted to the
probation department constituted the relevant evidence that
supported the restitution award. (People v. Cain, supra, 82
Cal.App.4th at p. 89.)
In her declaration, Crowther said Schwab actually paid
$283,661.02 in legal fees and costs because of Kelly’s conduct.
The trial court, acting within its discretion, elected not to
award Schwab all the fees and costs it actually paid. It reduced
the restitution to Schwab to $221,140.40. Kelly has not shown
the trial court abused its discretion. (People v. Carbajal (1995) 10
Cal.4th 1114, 1121.)
We have reviewed Kelly’s remaining contentions and we
conclude he has not shown grounds for reversal.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
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Gilbert A. Romero, Judge
Superior Court County of Ventura
______________________________
George L. Schraer for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorney General, for Plaintiff and Respondent.
20