People v. Davidson CA1/1 ( 2013 )

Filed 12/17/13 P. v. Davidson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE,
Plaintiff and Respondent,
A134788
v.
PETER KENT DAVIDSON, (Sonoma County
Super. Ct. No. SCR574451)
Defendant and Appellant.
Defendant Peter Kent Davidson ran a company that installed residential solar
systems. After being charged with numerous crimes related to his handling of the
business, he pleaded no contest to one count of first degree burglary (Pen. Code,1 § 459),
three counts of diverting deposits (§ 484b), and five counts of elder theft (§ 368, subd.
(d)). He also admitted an in-excess of $200,000 loss enhancement (§ 12022.6, subd.
(a)(2)). He appeals from the restitution order, challenging the amounts he has been
ordered to pay to two of the numerous victims. The People have taken the position a
limited remand is appropriate as to one of the two restitution amounts. After reviewing
the entirety of the record in the protracted restitution proceedings in this case, we
conclude no remand is necessary. We affirm one of the two challenged restitution
amounts in its entirety, and affirm the other restitution amount in part and reverse in part.
1
All further statutory references are to the Penal Code unless otherwise specified.
1
FACTUAL AND PROCEDURAL BACKGROUND
From May 2008 through February 2009, defendant operated a company called American
Sun Solar, which purported to sell and install residential solar systems.2 Among other
acts of malfeasance, defendant’s company failed to complete installations, misused
payments from customers, and failed to provide refunds for incomplete installations.
Defendant was eventually charged with two counts of first degree burglary (Pen. Code,
§ 459), 15 counts of diversion of a deposit (Pen. Code, § 484b), five counts of theft from
an elder (Pen. Code, § 368, subd. (d)), and misdemeanor counts of failing to obtain
workers’ compensation insurance (Lab. Code, § 3700.5) and contracting without a license
(Bus. & Prof. Code, § 7028, subd. (a)). An enhancement for loss or damage greater than
$200,000 was also alleged (Pen. Code, § 12022.6, subd. (a)(2)).
In October 2010, pursuant to a negotiated disposition, defendant pleaded no
contest to one count of first degree burglary, three counts of diversion of a deposit, and
five counts of elder theft, and admitted the loss enhancement. The remaining counts were
dismissed with Harvey waivers.3 Defendant stipulated to $153,000 in restitution as a
threshold amount, with additional restitution reserved.
About six months later, on May 2, 2011, the trial court denied probation and
sentenced defendant to the maximum term contemplated by the negotiated disposition of
ten years in state prison.4 The court awarded restitution in the amount of $195,456.54,
noting defendant had stipulated to $153,000, and reserved as to further restitution.
2
Because defendant’s conviction was based on a no contest plea, the facts are
taken from the probation report.
3
People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey).
4
The trial court explained its sentencing choice as follows: “You have some
favorable factors under California Rule of Court[, rule] 4.414 in that you completed three
grants of felony probation successfully. However, the unfavorable factors substantially
outweigh the favorable factors, in particular this is an extremely serious matter. You’ve
stolen close to $200,000 from people, and there is a stipulated agreement to [$]150,00,
but appears that the sum is at least [$]200,000. The scheme that you carried out shows
extensive planning, sophistication. You created a convoluted mess of employees,
fraudulent contracts, fraudulent licenses. You had wound in with all that an extensive
2
On May 31, the prosecutor gave notice of a hearing on June 3 to modify “the
existing restitution order to specify each victim and the amount owed to each.” After two
continuances, the first of numerous restitution hearings was held August 3. At that time,
the prosecutor submitted a document entitled “Distribution of Restitution to Victims”
listing 15 victims who requested restitution and the amounts claimed. The prosecutor
explained the prior restitution order, specifying payment through the Department of
Corrections (CDC), would not insure that the victims received full restitution, and the
court needed to order an amount per victim. The prosecutor also stated the amount
actually sought by the victims was $192,457.04, several thousand dollars less than the
court had previously ordered. Defendant then objected to a number of the amounts
sought. The court issued a revised restitution order for $192,457.04 and set the matter for
a further hearing so defendant could contest particular amounts owed.
At the October 12 hearing, defendant agreed to all of the restitution amounts,
except the amounts ordered as to Robert Truax ($15,700) and Eldon and Marian Killian
($8,212).5 Defense counsel stated attempts to subpoena these individuals had not been
successful, and counsel requested, and was granted, a continuance to obtain and review
documentation pertinent to these two claims. The prosecutor, in turn, advised the court
the revised restitution amount that had been ordered at the last hearing was again in error,
and stated the total restitution listed on the “Distribution of Restitution to Victims” was
history of substance abuse, and it appears you were taking drugs during the time this was
all going on. You also have self reported indebtedness of over $1 million or about $1
million. . . . I’m not even sure you could follow what you setup. You know, you have
multiple victims, you have false licenses, you have multiple equipment purchases . . .
And when you look at that picture that you created with these people and look at your
history, you are—you know, you have seven prior felonies, several of which are similar
to this one, and you have also performed poorly on a number of grants of probation.”
The trial court also later observed it was “particularly offensive” that you “represented
yourself in certain circumstances to be a Reverend, and in light of how you tried to suck
people in to do—to get contracts and so forth, that was also extremely offensive and
manipulative.”
5
At times the parties and court state the amount as $8,202, which appears to be
incorrect.
3
actually $162,425.50. The trial court revised the restitution ordered to be for that amount,
“payable to the victims as set forth in the Distribution of Restitution to the Victims Order
filed 8/3/11.”
At the continued hearing on November 10, the court began by summarizing the
status of restitution: the total amount of restitution ordered was then $162,425.50, and
two claims remained contested, that made by Truax ($15,700) and by the Killians
($8,212). Instead of directing his comments to these two restitution amounts, defendant,
speaking on his own behalf, commenced with a discourse about issues with his appointed
counsel—stating he might need to bring a Marsden6 motion, his desire for an accounting
of restitution he had paid to date, and his desire to cross-examine Truax and the Killians.
Defendant then provided copies of three checks written by Truax to the solar
company and deposited into West America Bank, a bank defendant claimed to have no
relationship with, and which were deposited into and dispersed from an account he
claimed to have no control over. Other people in the company, according to defendant,
controlled and managed those funds. Defendant asserted he was not an officer of the
company, only the general manager. Defendant also stated Traux’s solar system had
been fully installed. The prosecutor responded there were problems with the installation
and Truax had to hire a licensed contractor to make the system functional. She explained
the $15,700 sought by Truax was for the amount of a materials lien that had been placed
on his property ($15,000) and the amount he had to pay the contractor to make the system
operable ($700). Defendant continued to claim he did not owe restitution to Truax and
asserted his business records would show that.
Defendant also claimed the Killians received a functional system for the original
contract price and thus had not been damaged. Defendant acknowledged receiving an
initial payment from the Killians and claimed he used those funds to pay material costs
and company bills. He also asserted another contractor (and former employee), Don
6
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
4
Barch, completed the Killian’s system for the balance of the contract price. Accordingly,
the Killians did not suffer any loss.
The prosecutor explained the Killians’ restitution claim for $8,212 consisted of the
fee they had paid an attorney to help them ($450) and the initial amount they had
provided to defendant for installation of the system ($7,762). The prosecutor’s theory
was that the Killians “had to hire” Barch “to do the installation,” and that they had paid
defendant “over $7000 for no services.” The “$7,000 went nowhere except to
[defendant].” “[I]t’s the People’s position, and I think the case law supports this, that
[defendant] should not get a windfall of over $7,000 because another contractor came in
and gratuitously assisted [the Killians] in trying to get this” job done. The prosecutor
maintained a “prima facie” claim for restitution had been made, and it was up to
defendant to rebut it.
The court concluded defendant had raised some legitimate questions and wanted
to know the answers. The hearing came to a close with defendant requesting his files
returned to him, claiming he had delivered three boxes to the public defender’s office.
Defense counsel, who had largely not participated in the hearing, stated her office had
received two boxes and had already returned one. She also stated defendant’s inability to
view the material in an unredacted fashion and inability to have prolonged visits with
counsel (due to his incarceration) would make it burdensome to provide defendant with
the records and difficult to arrange a meaningful opportunity for joint review.
Ultimately, the court asked that the Truax and Killian files be delivered to it so it could
review the two claims. At that point, defendant, again speaking for himself, said he had
focused on these two claims because he “remembered” them, intimating he might have
issues with other claims. The court nipped this meandering in the bud, stating he had
stipulated to the other amounts, and only the Truax and Killian claims were at issue.
On December 8, the court advised the parties it had received the box of
documents, had briefly looked at them and was concerned that some appeared to be
attorney-client privileged materials. Defendant, again speaking for himself, stated the
files he wanted the court to review were not in the box, but elsewhere. The court
5
continued the hearing so he could have them delivered. The court also asked defendant
to prepare an offer of proof or a letter explaining his objections to the Truax and Killian
restitution claims. Defendant, in turn, asked that the victims be subpoenaed. The court
refused, stating it wanted to review defendant’s offer of proof before exploring that
option.
At the next hearing, on December 23, defendant, speaking for himself, began by
complaining about his attorney and saying he wanted to make a Marsden motion. The
court stated, “I’m not granting it for a restitution hearing,” and wanted to know whether
defendant had prepared the requested offer of proof or letter explaining his challenge to
the two restitution claims. At this juncture, the court was concerned defendant was “just
stalling.” Defendant responded he had a “right” to a restitution hearing where he could
question witnesses. The judge disagreed, explaining he was “not entitled to cross-
examine witnesses in a restitution hearing, unless I grant it.”
At this point, the public defender appearing that day, Karen Silver, stated defense
counsel who had been handling the case, Judy Conry, “also knew we can’t bring victims
in here,” and Silver requested that the court set the case for a Marsden motion. The court
responded: “[I]t would really help us out if she [Conry] would return his phone calls. He
has been complaining about this for months. I have tried to smooth this over, but I’m not
a miracle-worker. Please, I mean, somebody call this man back so he can do what he
needs to do.” The prosecutor then joined in the request for a Marsden hearing, and the
court continued the case for motion setting.
On January 26, 2012, a different judge heard and denied defendant’s Marsden
motion, and returned the case to the judge who had been handling the extended restitution
hearings.
The next restitution hearing took place on February 15. Deputy District Attorney
Amy Ariyoshi substituted for the prosecutor who had been handling the case, Robin
Hammond. The parties agreed to reduce the restitution award to the Killians to $450 (the
amount the Killians had paid an attorney for advice). Ariyoshi also stated there appeared
to be no dispute as to $700 of the Truax claim (the amount Truax paid to the contractor,
6
Barch, to get the system up to code), and defendant did not disagree. Continuing to speak
for himself, defendant reiterated his disagreement with the $15,000 Truax was claiming
for the materials lien. Defendant asserted he had subpoenaed a Mr. Hoffman who failed
to appear, and wanted additional time to obtain a bank signature card he claimed was
relevant.
Defendant also presented the written document the court had wanted spelling out
his objections to the two restitution claims. Upon determining defense counsel had not
seen it, the court directed defendant to give it to his attorney, who said she was “unclear
as to what the goal is for this.” The court reiterated defendant should give it to “Ms.
Conry, that Ms. Conry read it, and submit it to my judicial assistant if you deem it’s
appropriate, and I would prefer that you do that before the weekend, so that I could read
it over the weekend.” Defendant made no objection; instead, saying, “Cool.” Defendant
then asked for a copy of the document. The court said it would make one for defendant
and one each for defense counsel and the prosecutor. Defendant made no objection. The
prosecutor then volunteered to make the copies. The court said, “fine.” At this point,
defendant objected to the “D.A. looking at it until my attorney’s had” and the prosecutor
said she would have defense counsel make the copy and would “not look at it.”
At the next hearing, on February 22, defendant’s attorney, Ms. Conry, was again
in trial and another deputy public defender, Andrew Thomas, appeared. At the outset of
the hearing, the prosecutor, Ms. Hammond, explained she had been ill at the last hearing
and objected to the stipulation that had been reached as to the Killians, asserting they had
“actually lost” over $8,000 and therefore the lesser stipulated amount rendered the
“sentence invalid.” Hammond said, however, that the people were prepared to “submit”
on that issue. Mr. Thomas responded he was “in a bit of a disadvantage” because he had
been “summoned at the eleventh hour to appear” in place of Ms. Conry and was “really
not familiar with all the facts of the case.” The court then stated it had wanted to review
defendant’s written explanation of his challenge to the two restitution claims, and thought
copies had been made for all counsel. Mr. Thomas replied the court would have to put
the case over because “I don’t know the facts of this case.” The court then asked if
7
someone could “at least get the file,” and Thomas replied he would “make my best
effort.”
At this point, defendant interjected, “I’m going to tell Mr. Thomas that he’s going
to allow me to speak right now, so that I can get this over with. I’ve been here, and your
office has just been playing me along.” He complained nothing had changed since the
Marsden hearing, and that Ms. Conry failed to keep appointments and spoke to him
disrespectfully. “It’s beyond—I mean if you were in my place, you would want a
conflicts attorney. I want representation. I never have gotten it, one hour, on 24 counts.”
The court responded that was why she was asking Mr. Thomas to get the file. Defendant
then agreed he should “[go] get it.”
When Thomas returned, the court stated, “we’ve got a problem here,” recounted
there had been two Marsden hearings, and the court needed “someone to help this guy to
get this over with.” Noting defendant was being housed in the county jail because of the
repeated continuances, it wanted “to have a discussion about it today” to “see if we can
figure this out.” The court said it still did not understand why defendant was disputing
the Truax and Killian claims, and stated if there was another Marsden hearing and it had
to appoint new counsel “that would be a travesty . . . because we’re almost at the end of
this case.” Somebody, said the court, “just needs to follow through with it.” The court
also did not think Ms. Conry, “at this point, truly knows any more about the specific
things than you [Mr. Thomas] do.”
Thomas responded “I never heard of [defendant] until an hour ago,” when he was
approached by office staff and told Conry was in trial and had a “restitution issue that
needs to be submitted,” and asked whether he could “go up and say the word
‘submitted.’ ” At this point, defendant, speaking for himself, refused to submit on the
written document he had prepared, stating he had a “right to an attorney looking at it.”
The parties, including defendant still speaking for himself, then commenced
discussing the two restitution claims at issue. Defendant made no objection to going
forward, and repeated his view that the Killians were not out of pocket any money
because they received a workable solar system for the contract price. The prosecutor
8
then reiterated defendant’s contention he was not liable for what Truax had paid to
remove the materials lien because he had no control over the monies Truax had paid.
The prosecutor asserted this was irrelevant because defendant had pleaded with a Tahl
waiver7 as to all counts, including that involving Truax.
At this juncture, Mr. Thomas again objected to proceeding, explaining the court
file included “an entire box with assorted files in it.” The court stated it had gone through
these files because Ms. Conry “didn’t wish to” and determined there was nothing
relevant. Defendant immediately disagreed, whereupon Mr. Thomas, acknowledging the
court’s frustration, stated “I cannot possibly appropriately represent this gentleman at this
proceeding.” The court then asked if counsel could possibly help move the matter
forward and at least identify specifically what needed to be done. Mr. Thomas agreed to
try to help. Defendant made no objection.
Defendant, speaking for himself, then re-explained his position as to the Killians’
claim, not disputing the $450 they had paid an attorney. As he saw it, the Killians got the
solar system they purchased for the price they agreed to pay and therefore suffered no
loss. The Killians paid him the initial amount and paid the balance of the contract price
to Barch, who had previously worked for defendant and who completed the installation.
Defendant also stated the Killians had received a $4,123 rebate, which they had assigned
to the company and which had been credited against the contract price and ultimately
paid to Barch.
The prosecutor responded Barch had told the investigators he had done a few
installations for defendant’s company and defendant’s installers didn’t know what they
were doing. Barch said he met with defendant in January 2008, and defendant “signed a
release for releasing [the company’s] contracts on several projects. My goal is to
complete the solar installations on project and make the home owners whole.” Barch
“worked [with the homeowners] to get their systems running right and to get their rebate
paperwork filed.” He also claimed defendant told him the “the presite visit charge [part
7
In re Tahl (1969) 1 Cal.3d 122 (Tahl).
9
of the initial payment] was where all the profit was.” The prosecutor described Barch as
a “good Samaritan” who was “not paid” for completing the work, and who “would have a
right to subrogation once the victims are compensated.” The Killians, then, according to
the prosecutor, “should certainly be awarded victim restitution for what happened in this
case.”
Defendant disputed that Barch wasn’t paid. Rather, Barch got exactly what he had
always been slated to get under the contract for the installation, the $4,123 rebate amount.
The court then observed that had Barch done the job from the outset, he also would have
received the initial $7,762 the Killians had paid to defendant, and therefore defendant
apparently got a “windfall.” Defendant reiterated that he wanted to call Barch as a
witness, as well as Hoffman. When asked by the court if there was anything else he
wanted to add, defendant replied: “not without having a competent attorney that knows
about the case.”
As for the Truax restitution claim, defendant first complained he had not realized
he had pled no contest to a charge that he had committed burglary as to Truax and had
not realized he had pled to a strikeable offense. Turning his attention to restitution, he
challenged the $700 Truax paid to Barch to move the solar system on the ground the
relocation was wholly unnecessary. The prosecutor said the investigator reported the
$700 was paid to Barch to bring the system up to code.
As to the $15,000 Truax sought for releasing the materials lien, defendant, still
speaking for himself, “agree[d] that he should get that money back.” The prosecutor then
read from the investigator’s report that Truax actually paid only $2,026.40 toward the
lien, with other payments coming from the “the rebate check.” At this point, defendant
again complained that he had not been able to call witnesses, and he wanted “proof of
payment” of the amount claimed for releasing the materials lien. However, when asked
by the court, defendant agreed he would pay Truax as restitution for the lien, the
difference between the lien amount ($15,000) and the rebate credited towards the lien
($6,738), or $8,262. This concession was made with continued protestations he was not
personally responsible. Nevertheless, said defendant, “I will agree to pay that money
10
back to that customer because the people who were running the company at that time
threw their hands up.” At this point, the prosecutor agreed the rebate money had gone
towards satisfying the lien, and made only a passing attempt to object to crediting the
rebate and then “submitted” on the issue. The court then stated $8,3628 was owed Truax
for removal of the materials lien.
Turning back to the $700 Truax had paid to Barch, the court asked defendant
whether he “was submitting on that matter.” Defendant responded “that because the
Truaxes had to go through this challenge, and the final, the way the thing finally came
together, and they got approached, and all that stuff from PG&E, I would agree to pay
that money.” He continued to maintain he wasn’t “responsible to pay it,” but asserted he
felt “morally responsible to pay it.” The court then ordered that $9,062 be paid in
restitution to Truax ($8,362 for the lien removal and $700 for the amount paid to Barch).
Defendant made no objection. Nor did he disagree when the court stated “that takes care
of [the] Truaxes.”
The court then returned to the Killians’ claim. As he had indicated earlier in the
hearing, defendant, continuing to speak for himself, again did not object to the $450 they
paid to an attorney. He did, however, continue to object to any additional restitution on
the ground the Killians had received a functioning solar system for the price they had
agreed to pay and thus had not suffered any loss. After the prosecutor submitted, the
court asked defendant if he also submitted. Defendant responded by asking about his
written submission, which he said his attorney was to review. When the court asked
Mr. Thomas if he had had sufficient time to speak with defendant about it, he (Mr.
Thomas) replied he had spoken with defendant and understood defendant was “not going
to be submitting” the document. Mr. Thomas also advised he did not believe defendant
had anything further than what he (defendant) had orally presented at the hearing. He
additionally stated defendant wanted a continuance to further confer with Ms. Conry.
8
At other times, the trial court used the $8,262 figure.
11
Defendant, again speaking for himself, next complained the document he had
prepared at the court’s request had been forwarded to the prosecution before being
reviewed by counsel. He claimed he was supposed to meet with Ms. Conry, but she did
not “show up.” He wanted to meet with her again to go over the “front six inches” of
files in the box, claiming he needed an attorney that was “intimately aware of my case.”
When the court inquired what additional information there was pertaining to the Killians’
claim, defendant began to complain he had been limited to addressing only the two
restitution claims. He acknowledged the court “at least understood what was going on”
as to the Truax claim, but asserted for the same or similar reasons (related to rebates)
“there’s others that can be discussed.” The court reiterated defendant had stipulated as to
those claims, and only the Traux and Killian claims were at issue. Defendant then
launched into a discourse on the need to have the attorney who knew about his “tactics,”
and claimed there “is a point to all of this” that Ms. Conry “is aware of,” and that she was
not there “to allow us to do that.” He complained “[w]hat we did today kind of got
pulled out of me,” but then said, “that’s okay.” He then stated he wanted “the final thing
with Judy Conry here on the record.”
The court reiterated defendant had submitted as to the Truax claim, and defendant
did not disagree. As to how Ms. Conry’s presence would bear on the Killians’ claim,
defendant repeated his desire to call Hoffman as a witness. The court then stated it
intended to order $4,089 in restitution for the Killians—$450 for the attorney fees plus
$3,639 (representing the $7,762 payment they made to defendant, less the $4,123 rebate
they received).
Defendant continued to object on the ground he wanted to submit his written
document after review by Ms. Conry and he wanted to call Hoffman as a witness. The
court then turned to Mr. Thomas and asked how either would make any difference. He
responded that based on his discussion with defendant, he could not tell the court it would
make any difference. Defendant immediately accused Thomas of “having to say that to
protect his [the public defender’s] office” and again claimed his rights had been violated
by Ms. Conry’s apparent disclosure of his written document to the prosecutor. The
12
prosecutor immediately responded she had not utilized anything from the document. The
court, in turn, asked defendant how he had been prejudiced by the disclosure, and also
stated it felt the hearing, while long, had been very productive. Defendant agreed. The
court then asked defendant what Hoffman would testify to. Defendant made generalized
assertions Hoffman’s testimony would make things “clear” as to the “contracts” and
Barch’s completion of the work, and again stated that, other than the attorney fee, he did
not owe the Killians anything.
The rest of the hearing was spent attempting to add up all the restitution items
owed. Ultimately, the court concluded the estimated restitution total from October
2011—lowered to $162,425.50 from $192,457.04—had been reached by arithmetic error,
and found the specific victim amounts, as modified, totaled $181,696.04. The hearing
closed with Mr. Thomas stating he would file a notice of appeal for defendant as to the
restitution order, and defendant complaining about “how poorly” Ms. Conry represented
him in connection with the plea bargain and accusing her of being a “lousy attorney” who
was “a surrogate prosecutor.”
DISCUSSION
We have recited the saga of the restitution hearings in this case in detail because it
shows that neither defendant, nor the Attorney General, is entirely correct in his and her
assessment of the restitution order. Indeed, our review of the entirety of the restitution
record leads inevitably, in our view, to two conclusions which do not require extensive
discussion.
The Truax Restitution Claim
While defendant contends on appeal that he was deprived on his right to
competent representation, requiring reversal of the restitution order as to both Truax and
the Killians, in our view that is not a fair characterization of what transpired during these
unusually protracted restitution proceedings. Frankly, defendant’s principal attorney said
next to nothing during the proceedings and defendant did not hesitate to speak for
himself. He clearly and forcefully made his case to the trial court—repeatedly. This held
true at the last hearing, as well, when Mr. Thomas appeared for defendant’s usual
13
attorney, Ms. Conry. While Thomas, at the outset of the hearing, expressed doubt as to
his ability to represent defendant, defendant did not then ask that the proceedings be
continued. On the contrary, he made it abundantly clear he was totally frustrated at how
long the restitution proceedings were taking, agreed Thomas should retrieve the file so
the court could proceed, and then, speaking on his own behalf, proceeded to address at
length the two restitution claims at issue.
By the time defendant discussed the Truax restitution claim, in particular, there
was not the faintest suggestion he felt, or was suffering from, any deprivation of
competent representation. On the contrary, defendant had acceded to Mr. Thomas’
acquisition of the court file, had acceded to moving forward with the hearing, and had
ably made his case about the Truax claim. The trial court then agreed to substantially
reduce the restitution it had previously awarded ($15,700) to $9,062. And defendant
expressly and unequivocally agreed to pay that amount. In short, whatever concern
defendant might have had about Mr. Thomas standing in for Ms. Conry was long set
aside by the time defendant got to the meat of the Truax claim. And any concern
Mr. Thomas had about his lack of familiarity of the case had absolutely no bearing on the
discussion and resolution of the Truax claim. Indeed, there is not the faintest suggestion
from anything in this record that the outcome on the Truax claim could possibly have
been any more favorable to defendant than it was.
Defendant’s assertion, at the end of the hearing, that he wanted Ms. Conry present
for “the final thing . . . on the record” has no impact on the disposition of the Truax
claim. Read in context, defendant’s belatedly professed desire to have Conry present
(despite having repeatedly criticized her throughout the hearings) pertained to his
continuing dispute over the Killians’ claim, which the trial court had not resolved to his
satisfaction, in contrast to the Truax claim. Indeed, only moments before summoning up
Conry’s name, defendant agreed the trial court “at least understood what was going on”
as to the Truax claim. What defendant remained disgruntled about, and why he asked at
the eleventh hour for Conry, was to put off the final decision on the Killians’ claim.
14
We thus conclude that as to Truax, defendant has no grounds to challenge the
restitution award.
The Killians’ Restitution Claim
The restitution awarded to the Killians consisted of two amounts: $450 (what they
paid to an attorney for advice) and $3,639 (the $7,762 initial payment they made to
defendant, less the $4,123 rebate).
As to the $450, the record makes clear defendant never took issue with that part of
the Killians’ claim. Moreover, at the hearing on February 15, 2012, at which his usual
counsel, Ms. Conry was present, defendant stipulated to restitution in that amount.
Defendant never disavowed that stipulation, and at the final hearing, continued to agree
that was a proper item of restitution. Accordingly, defendant has no basis for challenging
that part of the Killians’ restitution award.
Rather, defendant’s challenge to the Killians’ restitution claim, all along, has been
to the $7,762, the initial amount paid for the solar system. As discussed above, this is the
claim as to which defendant purported to want Ms. Conry present. However, we need
not, and do not, decide whether defendant was denied adequate representation in
connection with that claim, requiring reversal and remand. We conclude there is a more
fundamental problem with this aspect of the Killians’ restitution claim, namely there is no
evidence the Killians were damaged in this amount. (See generally People v. Busser
(2010) 186 Cal.App.4th 1503, 1508–1510 (Busser) [restitution is proper only where
victim suffers actual economic loss].)
The Killians, unlike others, received a functioning solar system, for the price they
had agreed to pay. In short, they got the benefit of their bargain. The prosecutor never
disputed this. Instead, her argument eventually focused on the fact defendant received
the initial amount ($7,762), but another contractor, Barcher, actually installed the system.
But the fact defendant may have failed to pull his weight in getting the installation
completed—vis-à-vis Barcher—does not entitle the Killians to restitution. Nor does the
fact Barcher might theoretically be able to sue the Killians for the full value of his work
entitle them to restitution. There is not a shred of evidence suggesting Barcher
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contemplates seeking any amount from the Killians. Thus, any such damage is pure
speculation. The trial court appeared to base this restitution amount on its perception
Barcher was rightfully entitled to the $7,762, not defendant. But even if that were true, it
does not mean the Killians can recover this sum. Furthermore, defendant testified
without contradiction that Barcher was, in fact, paid the amount for which he had
previously agreed to do the job, namely the $4,123 rebate amount, which the Killians in
their contract signed over to the company in exchange for a credit against the purchase
price.
In sum, we agree with defendant the evidence does not show the Killians paid any
more for their solar system than what they agreed to pay for it under the contract and,
therefore, they are not entitled to restitution of the initial amount they paid to defendant,
rather than to someone else in the company. (See Busser, supra, 186 Cal.App.4th at
pp. 1509–1510 [because insurance company was required under policy to pay repair
costs, defendant’s criminal misrepresentations did not entitle insurer to restitution of
those amounts].) We therefore order $3,639 (the $7,762 initial amount they paid to
defendant, less the $4,123 rebate) stricken from the restitution order as to the Killians.9
Total Restitution
In light of our rulings as to the Truax and Killian claims, the total restitution
awarded is $178,057.04. That number is reached whether one subtracts $3,639—the
amount erroneously awarded to the Killians—from the trial court’s final, total restitution
award of $181,626.04; or whether the final awards as to Truax ($9,062) and the Killians
($450) pursuant to the reductions as to Truax and Killians ordered by the trial court and
the further reduction as to the Killians we have ordered, are added to the amounts listed
in the August 3, 2011, Distribution of Restitution to Victims statement and ordered as to
other claimants (totaling $168,545.04).
9
Given our conclusion in this regard, we need not, and do not, address,
defendant’s argument that the prosecution could not withdraw its stipulation as to the
Killians’ restitution made at the February 15 hearing.
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Defendant contends the total restitution award cannot exceed $162,425.50, the
figure the prosecutor requested, and the court ordered, at the October 2011 hearing. The
salient point, however, is that at that October hearing, defendant expressly stipulated to
the amounts enumerated in the Distribution of Restitution to Victims statement for each
victim, except Truax and the Killians. Accordingly, as the trial court repeatedly made
clear, only the amounts owed Truax and the Killians were at issue, and the restitution
amounts listed in the written statement and ordered as to all the other victims was not.
On careful examination of the record, it is apparent the prosecutor simply made a
mistake at the October hearing in stating the amounts listed in the Distribution of
Restitution to Victims statement (including those made by Truax and the Killians) totaled
$162,425.50. Specifically, it is apparent the prosecutor skipped over the restitution claim
of the second-listed victim, in the amount of $30,031.54. When that amount is included,
the restitution claims enumerated in the statement total $192,457.04, as the court ordered
at the previous hearing. In any case, given defendant’s stipulation as to the individual
restitution claims, other than those of Truax and the Killians, he cannot take advantage of
an arithmetic error to lessen his admitted restitution burden.
DISPOSITION
The restitution ordered as to the Killians is reduced to $450, and the Abstract of
Judgment is to be corrected accordingly. The restitution ordered as to Truax is affirmed.
_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
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