People v. Edelen CA4/1 ( 2023 )

Filed 4/21/23 P. v. Edelen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080277
Plaintiff and Respondent,
v. (Super. Ct. No. SCD289841)
EDWARD ALFONSO EDELEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kimberlee A. Lagotta, Judge. Affirmed.
Michelle J. Cameron-Hunsaker for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Robin
Urbanski and Juliet W. Park, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Edward Alfonso Edelen pled guilty to assault with force likely to
produce great bodily injury (Pen. Code,1 § 245, subd. (a)(4)), and the trial
court placed him on formal probation. Among other terms and conditions, the
court required Edelen to pay restitution to the victim, who happened to be a
lawyer. The amounts awarded in restitution included substantial sums for
the victim’s lost wages and for legal fees the victim incurred in civil
proceedings filed against Edelen. Edelen argues the court abused its
discretion by awarding restitution of these claimed losses. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Conduct Underlying the Criminal Charges Filed Against Edelen
A. Counts 1 and 22
On March 26, 2021, 26-year-old Edelen was arrested for assaulting
C.B., his landlord. Edelen recently had moved into an apartment complex
owned by C.B. and C.B.’s wife, and he had been the subject of several
complaints of loud noise and being aggressive toward neighbors.
C.B. and his wife drove to the complex and placed a three-day notice on
Edelen’s door. The notice stated Edelen needed to “address the complaints
and fix the problems” or they would file for eviction. Edelen followed C.B.
and his wife as they walked back to their car and yelled at them. C.B. and
his wife got in their car, and as they pulled away, Edelen tore up the notice.
1 Further unspecified statutory references are to the Penal Code.
2 Edelen was convicted by his guilty plea, and there was no preliminary
hearing. Our factual summary is derived from the stipulated factual basis
for his guilty plea and the probation report, which in turn relied on reports of
the San Diego Police Department.
2
C.B. told his wife to stop the car so he could take a picture of the notice for
evidence. When C.B. got out of the car, Edelen ran at him and pushed him.
C.B.’s wife heard the sound of a head hitting the asphalt. She looked
up and saw C.B. lying on the asphalt unconscious with Edelen standing over
him. Edelen punched the unconscious C.B. four times in the face. Edelen
ran off, and she ran to C.B., who was bleeding from his nose and mouth and
had blood on his ear.
Police officers responding to the scene found C.B.’s wife helping C.B. sit
up in the middle of the street. C.B. had bruises on his face, a swollen, bloody
lip, and a cut on his scalp. There was a line of blood from his left ear to his
mouth. He had difficulty speaking and did not know what had happened to
him.
B. Counts 3 and 4
As the officers were leaving, J.W. and B.L. reported that Edelen had
burst into their apartment, jumped on top of J.W., and started punching him.
J.W. said he had been struck on his legs, torso, and head, but was not
injured. B.L. reported that Edelen had tried to punch him but did not
connect. Edelen’s girlfriend came in, pulled him off, and took him out of the
men’s apartment.
Edelen initially fled the scene, but he returned while the police were
still investigating. Edelen stated that he had been in an ongoing dispute
with his neighbors, J.W. and B.L., about noise levels. When C.B., whom
Edelen had never met, showed up at his apartment and served him with
paperwork, Edelen was confused and thought it stemmed from J.W. and B.L.
complaining about him. Edelen followed C.B. and his wife to their car to tell
them to leave him alone. When they started to leave, he got scared and tore
up the notice because he thought they were going to hit him with their car.
3
When C.B. exited the car to take pictures of the notice, C.B. approached
Edelen’s girlfriend and tried to hand paperwork to her. At this, Edelen
“ ‘snapped’ ” and punched C.B. twice in the face. C.B. fell and was not
moving. As Edelen was returning to his apartment, he stopped at J.W. and
B.L.’s apartment and began punching them because he was still upset.
Edelen then realized what he was doing and left.
II.
Procedural Background
A. Charges, Conviction, and Sentence
Edelen posted bail the morning after his arrest and was given an
arraignment date in August 2021. A felony complaint was filed charging
Edelen with assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4); count 1), with an infliction of great bodily injury
enhancement allegation (§ 12022.7, subd. (a)); battery resulting in infliction
of serious bodily injury (§ 243, subd. (d); count 2); and two counts of simple
battery (§ 242; counts 3 and 4). At the scheduled arraignment, Edelen
entered a not guilty plea, and a criminal protective order was issued naming
C.B. as the only protected person.
In September 2021, pursuant to a negotiated plea agreement, Edelen
pled guilty to the assault charge in count 1. In exchange, the prosecution
agreed to dismiss the enhancement allegation and remaining counts. The
plea agreement included a Harvey3 waiver and Edelen stipulated that he
would pay full restitution. At the sentencing hearing, the trial court
suspended imposition of sentence and placed Edelen on two years of formal
probation.
3 People v. Harvey (1979) 25 Cal.3d 754.
4
B. Restitution Hearing
A formal restitution hearing was held in February 2022. Prior to the
hearing, the prosecution filed a brief seeking victim restitution totaling
$184,014 on behalf of C.B., in addition to a total of $7,039.79 on behalf of the
California Restitution Board. The prosecution stated that C.B. was an
attorney at a “premier legal firm.” His hourly rate as a partner was $750,
and he billed an average of 100 hours per month. He was requesting lost
wages for April and May 2021 to make up for billable hours he lost due to the
lingering effects of his injuries. He also sought lost wages of $6,750 for nine
hours spent attending court in the criminal case as well as a civil proceeding
in which he sought a restraining order against Edelen, and $15,000 for 20
hours of physical therapy appointments he attended between July and
October 2021.
The prosecution attached several exhibits to its brief, including a
sample client engagement letter from C.B.’s law firm showing C.B.’s hourly
rate as of December 2020 was $750, and a report of C.B.’s billable hours for
January through August 2021. C.B.’s billable hours showed that from
January through August 2021, his monthly billable hours had ranged from a
low of 103.05 to a high of 136.15 in the months other than April and May. In
April, he recorded 2.5 billable hours, and in May, he recorded 22.55 billable
hours. The prosecution calculated that C.B. was entitled to receive
restitution in the amount of $67,076 for his wage losses in April 2021 and
$56,700 for his wage losses in May 2021.4 Thus, C.B.’s total wage loss claim,
4 The prosecution calculated these amounts as follows. For April 2021,
C.B. lost 97.5 billable hours (average of 100 billable hours per month minus
2.5 actually billed), multiplied by $750 per hour equals $73,125, offset by
$6,048.43 received from collateral sources, for a total loss of $67,076.57. For
May 2021, C.B. lost 75.6 billable hours (average of 100 billable hours per
5
including these amounts as well as amounts he sought for time spent
attending court hearings and physical therapy appointments, was $145,526.
In addition to this sum, C.B. also requested reimbursement of a $10,000
retainer paid to an outside law firm5 to obtain a civil restraining order
against Edelen, $8,500 in “[e]viction legal fees,” and other amounts not
relevant to this appeal.
The defense filed an opposition brief in which it argued C.B.’s lost
billable hours were not recoverable as restitution because they were not lost
wages, they were “what the attorney bills to the client[.]” The defense
asserted that it believed C.B. received a salary, and suggested his salary
payments were unaffected in April and May 2021 such that C.B. did not
actually lose income as a result of the incident. The defense also argued
there was no need to initiate eviction proceedings against Edelen because
Edelen’s attorney had sent C.B.’s outside counsel a letter on April 9, 2021
stating Edelen was willing to voluntarily leave his apartment by April 30.
At the restitution hearing, C.B. testified he is a lawyer as well as the
principal and sole shareholder of a small law firm. As the result of the
assault, he suffered a concussion so severe it caused him to suffer vertigo that
kept him bedridden for 30 days. He could not stand, walk, see clearly, or
read. He received neurological treatment that allowed him to slowly regain
the ability to sit up and interact. He was finally able to walk without fear of
falling 60 days after the assault.
month minus 24.4 actually billed), multiplied by $750, equals a total loss of
$56,700.
5 The prosecution’s exhibits included a July 2021 email reflecting the
outside law firm’s receipt of a $10,000 payment from C.B.
6
Due to his injuries, C.B. was unable to perform his usual work as a
litigator for much of April and May 2021. C.B. verified that his billable hours
reports reflected his inability to work and bill his usual number of hours
during this period. His hourly rate at that time was $750; his clients had
been paying this rate since December 2020. C.B. testified he could not recall
the last time he billed and collected less than 100 hours in a month.
C.B. testified his actual income was affected by the number of hours he
billed. His law firm was organized as an S corporation, so “whatever the
profits are at the end of year, they go down to [him.]” He periodically took
distributions, which included amounts he billed and collected. He stated the
reduction in his billable hours in April and May 2021 reflected a “[d]ollar for
dollar,” actual loss of income for him. He was not able to make up for the loss
by billing additional time in other months. C.B. also confirmed his
attendance of the court hearings and physical therapy appointments
underlying his additional requests for reimbursement of wage loss.
C.B. paid the $10,000 retainer to an outside law firm to seek a civil
restraining order against Edelen. C.B. decided he needed to get a restraining
order protecting the complex as well as himself because Edelen posted bail
quickly and returned to the complex. The day after the assault, C.B. and his
wife received a call from a tenant complaining that there had been another
altercation (apparently involving Edelen). Other tenants reported concerns
about Edelen “being a hot head at the apartment complex.” He decided to
proceed civilly rather than wait for entry of a criminal protective order after
learning it would not be possible to see a criminal judge any sooner than
Edelen’s arraignment, which was not scheduled to take place until August
2021.
7
A temporary restraining order was granted four or five days after the
assault, although there was an error on it that “required more work.” By the
time of the restitution hearing, a permanent restraining order had been
entered against Edelen and was still in effect.
The $8,500 in “[e]viction legal fees” requested by C.B. represented legal
fees and costs he incurred suing to evict Edelen and his girlfriend from their
apartment. Before the assaults, tenants had complained that Edelen was
hostile and aggressive towards them. The reason C.B. and his wife were at
the complex on the day of the incident was to serve Edelen a three-day notice
“to get his act together or move out.”
After Edelen committed the assaults, tenants were concerned. By the
end of the three-day notice period, Edelen had not left voluntarily, and C.B.
“needed to get him out.” The unlawful detainer suit required extra work
because it was filed during the COVID-19 pandemic and evictions were not
being granted unless the case involved an exceptional circumstance. Also,
although Edelen’s lawyer had sent a letter representing that Edelen would
agree to move out, Edelen and his girlfriend filed an answer to the unlawful
detainer complaint, turning it into a contested case. Edelen finally vacated
the apartment sometime in late April or May of 2021. The $8,500 sought was
the actual dollar amount C.B. paid a contract attorney, process servers, and
other vendors to handle the case.
Defense counsel cross-examined C.B. but did not otherwise present
evidence. On cross-examination, C.B. acknowledged receiving a base salary
of $100,000 per year, or $8,333.33 per month, in addition to taking
distributions from his firm. He testified that he suffered $130,000 in lost
profits in 2021, which he attributed in large part to the hours he did not work
in April and May 2021. Although others may have covered his court
8
appearances during this time, a hearing might have been delayed but that
did not mean he did not lose billable work. C.B. did not have just a fixed
amount of work that could be done by others. He had “a ton of work,” roughly
80 pending cases. C.B. testified that when he was “laid up for a month or six
weeks, whatever it is, that’s just billable work that will not get done.”
Defense counsel did not cross-examine C.B. about the $10,000 retainer,
the $8,500 eviction fees and costs, or the court hearings and physical therapy
appointments he claimed caused him to lose additional billable hours.
At the conclusion of the hearing, the trial court found C.B. had
sustained a debilitating injury and spent a month to 60 days recovering from
that injury. It further found the prosecution had proved by a preponderance
of the evidence that C.B. had, in fact, suffered wage losses of $67,076 in April
2021 and $56,700 in May 2021, and $15,000 for attending physical therapy
sessions. The court granted restitution totaling $6,780 for C.B.’s attendance
of court hearings, which included $6,750 for nine lost billable hours at $750
per hour. The court explained to Edelen, “you take the plaintiff as you find
him,” and “in this particular case, the plaintiff happens to be a lawyer that
has wages that add up to that amount.”
The court stated it “struggl[ed] a bit” with the request for $8,500 in
eviction legal fees, but granted them on the ground the eviction process was
“intertwined with the criminal case because it’s part and parcel of what
occurred in this case.” It also granted restitution of the $10,000 law firm
retainer, stating “but for this incident, there would have been no need for
[C.B.] to have sought a temporary restraining order and sought outside legal
counsel to keep himself and the other tenants safe.”
The trial court also granted restitution of the other sums sought by the
prosecution, with the exception of one request not at issue here. In all, the
9
court ordered Edelen to pay restitution of $181,014 to C.B., and $7,039.79 to
the California Victim Compensation Board. In response to defense counsel’s
assertion that Edelen was currently earning less than $2,000 per month, the
court set Edelen’s restitution payment obligations at $50 per month starting
in June 2022.
DISCUSSION
Edelen challenges the trial court’s decision to award C.B. $145,556 in
lost wages for the billable hours he lost while recovering from his injuries,
attending court hearings and physical therapy sessions, as well as the
$10,000 law firm retainer and $8,500 legal fees and costs. He argues the
court abused the authority conferred by section 1202.4 by granting
restitution of these amounts, and asks us to strike them from the restitution
order. The People respond that Edelen has based his appellate challenge on
the wrong statute. They contend this case is governed by section 1203.1,
which applies to probation cases and grants courts broader discretion to
award victim restitution than in non-probation cases, which are governed by
section 1202.4. Edelen did not file a reply brief on appeal opposing the
People’s arguments. As we shall discuss, Edelen fails to establish an abuse of
discretion.
I.
Relevant Legal Principles
Article 1, section 28, subdivision (b), of the California Constitution sets
forth a “ ‘broad constitutional mandate . . . 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 (Kelly).) In keeping with this mandate,
“ ‘statutory provisions implementing the constitutional directive [that victim
10
restitution be made] have been broadly and liberally construed.’ ” (People v.
Stanley (2012) 54 Cal.4th 734, 737 (Stanley).)
One of these implementing provisions is section 1202.4, which states:
“It is the intent of the Legislature that a victim of a crime who incurs an
economic loss as a result of the commission of a crime shall receive restitution
directly from a defendant convicted of that crime.” (§ 1202.4, subd. (a)(1); see
People v. Giordano (2007) 42 Cal.4th 644, 656 (Giordano).) Section 1202.4
further requires that “in every [criminal] case in which a victim has suffered
economic loss as a result of the defendant’s conduct, the court shall require
that the defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by the victim
or victims or any other showing to the court.” (§ 1202.4, subd. (f).) It states
that any such restitution order shall “fully reimburse the victim . . . for every
determined economic loss incurred as the result of the defendant’s criminal
conduct, including, but not limited to” 12 listed categories of loss.6 (§ 1202.4,
subd. (f)(3)(A)–(L), italics added; see Stanley, supra, 54 Cal.4th at p. 737.)
The California Supreme Court has held that because the categories of
loss listed in section 1202.4, subdivision (f)(3), are “expressly nonexclusive,”
the statute does not limit restitution to the listed categories. (Giordano,
supra, 42 Cal.4th at p. 660.) “The only limitation the Legislature placed on
victim restitution is that the loss must be an ‘ “ ‘economic loss’ ” ’ incurred as
a result of the defendant’s criminal conduct.” (People v. Williams (2010) 184
Cal.App.4th 142, 147.) The phrase “ ‘economic loss,’ ” in turn, “is accorded an
6 A defendant’s inability to pay may not be taken into consideration in
determining the amount of a restitution order. (§ 1202.4, subd. (g).)
11
expansive interpretation under our laws.” (In re Alexander A. (2011) 192
Cal.App.4th 847, 854, fn. 4.)
Another provision that implements the constitutional mandate in favor
of victim restitution is section 1203.1, which applies to cases in which the
court suspends imposition or execution of sentence and grants probation.
(See § 1203.1, subd. (a); People v. Martinez (2017) 2 Cal.5th 1093, 1101.)
Section 1203.1 requires a court to “provide for restitution in proper cases.”
(§ 1203.1, subd. (a)(3).) Our high court has held that section 1203.1 confers a
trial court with even broader discretion to order victim restitution in
probation cases than in non-probation cases, which are governed by section
1202.4. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; accord, People v.
Anderson (2010) 50 Cal.4th 19, 25–29 (Anderson); Martinez, at pp. 1101–
1102.) Trial courts have authority under section 1203.1 “to impose
restitution as a condition of probation in circumstances not otherwise
dictated by section 1202.4.” (Anderson, at p. 29.) Under section 1203.1, the
restitution condition need only be “reasonably related either to the crime of
which the defendant is convicted or to the goal of deterring future
criminality.” (Carbajal, at p. 1123.)
“The standard of proof at a restitution hearing is preponderance of the
evidence. [Citation.] A victim’s statement of economic loss is prima facie
evidence of loss.” (People v. Grandpierre (2021) 66 Cal.App.5th 111, 115
(Grandpierre).) “ ‘ “ ‘[S]entencing judges are given virtually unlimited
discretion as to the kind of information they can consider’ ” ’ in determining
victim restitution.” (People v. Phu (2009) 179 Cal.App.4th 280, 283.) The loss
may be based on the victim’s estimate. (People v. Goulart (1990) 224
Cal.App.3d 71, 82–83.) It may also be based on “[d]ocumentary evidence,
such as bills, receipts, . . . business records, and similar documents relevant
12
to . . . wages and profits lost[.]” (§ 1203.1d, subd. (d).) Once a prima facie
case of economic loss has been made, “the defendant has the burden to
disprove the amount of losses the victim claimed.” (Grandpierre, at p. 115.)
A victim restitution order is reviewed for abuse of discretion.
(Giordano, supra, 42 Cal.4th at p. 663.) “We determine whether the
restitution order, as a condition of probation, is arbitrary or capricious or
otherwise exceeds the bounds of reason under the circumstances. [Citations.]
‘A condition of probation will not be held invalid unless it “(1) has no
relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct
which is not reasonably related to future criminality[.]” ’ ” (Anderson, supra,
50 Cal.4th at p. 32, quoting People v. Lent (1975) 15 Cal.3d 481, 486.)
“ ‘When there is a factual and rational basis for the amount of restitution
ordered by the trial court, no abuse of discretion will be found by the
reviewing court.’ ” (People v. Mearns (2002) 97 Cal.App.4th 493, 499
(Mearns).)
II.
The Trial Court Did Not Abuse Its Discretion
by Granting Restitution of C.B.’s Claimed Lost Wages
Edelen advances three reasons why the trial court abused its discretion
by granting restitution of C.B.’s claimed lost wages. First, he argues C.B.’s
lost billable hours constituted an economic loss to C.B.’s law firm, which was
not the victim of the crime, rather than to C.B. Second, Edelen argues an
attorney’s billable hours are “an amount collected by a lawyer . . . and are not
classified as wages, profits, or commission,” one of the categories of loss listed
in section 1202.4, subdivision (f)(3). Third, he argues C.B.’s income losses
13
should have been calculated using his base salary rather than his billable
hourly rate.
The People respond that Edelen’s arguments improperly rely on section
1202.4 rather than section 1203.1. They argue the trial court did not abuse
its discretion under section 1203.1 when it awarded C.B.’s lost wages because
his wage losses were reasonably related to Edelen’s crime and restitution of
C.B.’s wage losses served a rehabilitative purpose.
We would find no abuse of discretion under either restitution provision.
The procedures for proving and rebutting a victim’s claim of loss do not differ
based on which restitution statute governs. (See, e.g., Grandpierre, supra, 66
Cal.App.5th at pp. 114–116 [describing the burden-shifting procedures that
apply in a probation case]; People v. Lehman (2016) 247 Cal.App.4th 795, 801
[describing the same burden-procedures as applicable in a non-probation
case].) Edelen’s challenges to the award of C.B.’s wage losses are more
factual than legal. They fail not because he analyzes the restitution award
under the wrong statute, but because his arguments rely on factual
propositions that were not established by evidence in the trial court.
We start with Edelen’s first challenge⎯that C.B.’s lost billable hours
were not recoverable because they represented a loss only to C.B.’s law firm,
and not to C.B. himself. The problem with this argument is that it ignores
the evidence presented at the restitution hearing. The prosecution
established that during the period C.B. was recovering from his injuries, he
billed substantially less than his usual 100 hours per month, resulting in a
loss to the firm of $750 per hour for each hour he did not bill. C.B.’s
supporting documentation as well as his own testimony substantiated his
claim that he lost 97.5 billable hours in April 2021 and 75.6 billable hours in
14
May 2021 due to his injuries, as well as nine more hours attending court
hearings and another 20 hours going to physical therapy sessions.
Although the retainer agreement produced by C.B. tended to show any
client payments would have been directed to C.B.’s law firm rather than to
C.B. himself, C.B. testified his law firm was organized as an S corporation,7
he was its only shareholder, and he took periodic distributions of the firm’s
profits. He further testified the hours he did not work were not made up by
the work of another lawyer, that he was unable to make up for the loss
himself by doing extra work in other months, and that the reduction in his
billable hours reflected an actual, “[d]ollar for dollar” loss of income to him.
C.B. was entitled to full reimbursement of all economic losses,
including wage and profit losses, he personally incurred as a result of
Edelen’s crime. (§ 1202.4, subd. (f)(3)(D); see Giordano, supra, 42 Cal.4th at
p. 661.) C.B.’s testimony and documents constituted prima facie evidence his
own income, and not just his firm’s income, was reduced by the billable hours
he was unable to work as a result of his injures from the assault.
The burden shifted to Edelen to disprove the amount of losses that C.B.
claimed. But he was unsuccessful in his efforts to disprove C.B.’s claim that
he suffered personal income loss as a result of the reduction in his billable
hours following the assault. Edelen tried to sustain this burden by
questioning C.B., but C.B. yielded no ground on cross examination. In
response to defense counsel’s questions, C.B. acknowledged receiving a base
salary of $8,333.33 per month, but said he also received distributions. He
7 In an S corporation, “ ‘ “[e]ach item of corporate income and expense is
‘passed through’ to the shareholders in exactly the same form as received by
the corporation.” ’ ” (J.P. Morgan Trust Co. of Delaware v. Franchise Tax Bd.
(2022) 79 Cal.App.5th 245, 269.)
15
testified his firm experienced a loss in profits in 2021, which he attributed in
large part to the hours he was unable to bill due to his injuries. He denied
that others in his firm made up for the work he did not perform, stating
“when I’m laid up for a month or six weeks, whatever it is, that’s just billable
work that will not get done.”
In short, C.B.’s testimony, together with his supporting documentation,
established a prima facie claim he suffered personal economic loss equivalent
to the value of the billable hours he lost as a result of Edelen’s crime. Edelen
was unable to disprove this claim, or to provide the court with a viable
alternative theory for valuing C.B.’s lost time. Accordingly, the court did not
abuse its discretion when it granted C.B.’s claimed wage losses. (See Mearns,
supra, 97 Cal.App.4th at p. 499.)
For similar reasons, we reject Edelen’s argument that an attorney’s
billable hours cannot be equated with wages or profits for purposes of
ordering victim restitution. This argument is poorly developed, but it
appears to rely on the theories that the hours a lawyer bills do not become
income until they are billed to a client and collected, and a lawyer’s hourly
rate ordinarily includes business overhead such that any amounts collected
are not pure profit.8
8 Within this argument, Edelen quotes the federal tax code definition of
“Wages” (26 U.S.C. § 3401) without providing any context or explanation how
this definition has any bearing on the interpretation of our state’s restitution
laws. He also does not state what he wishes us to draw from the definition.
He simply pastes the quote into his brief and moves on. Edelen’s perfunctory,
unexplained quotation of federal tax law does not constitute a properly
developed appellate argument. (See T.P. v. T.W. (2011) 191 Cal.App.4th
1428, 1440, fn. 12 [incomplete, undeveloped arguments are forfeited on
appeal].)
16
While these might seem like reasonable points in the abstract, to
reduce restitution, they require evidentiary proof. And Edelen’s theories lack
such proof. On the subject of collections, at the restitution hearing, C.B.
testified he could not recall the last time he “billed and collected less than . . .
100 hours per month.” (Italics added.) This testimony supported the
conclusion that the 100-hour baseline used to calculate C.B.’s losses did
represent amounts collected; Edelen did not elicit evidence to the contrary.
The subject of business overhead was not specifically broached at the
restitution hearing. However, once C.B. testified on direct examination that
his lost billable hours represented a “[d]ollar for dollar” loss of income to him,
the burden shifted to Edelen to present evidence undermining this testimony,
which he failed to do. Edelen could have, but did not, question C.B. about the
extent to which C.B.’s hourly rate included overhead, whether any of C.B.’s
unearned fees would have included business expenses, or whether there was
any other basis for reducing his wage loss claim. Since the trial court was
provided no factual basis for awarding C.B. less than the amount of his
claimed losses, it did not abuse its discretion when it failed to do so.
As for Edelen’s contention that C.B. suffered no wage loss because “the
firm was still doing the work and getting the billable hours,” a similar point
was raised and rejected in Grandpierre. The defendant in Grandpierre was
placed on probation after stealing the identity of the victim, who owned 30
percent of an engineering company. (Grandpierre, supra, 66 Cal.App.5th at
p. 113.) At the restitution hearing, the victim testified he spent 12 business
hours dealing with issues related to his credit and business phone number,
and that “ ‘[t]he time spent would have been billable hours, had [he] been
able to focus on [his] business instead of dealing with this.’ ” (Id. at p. 114.)
The victim billed his clients $195 per hour. He “ultimately worked these 12
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hours outside usual work hours.” (Ibid.) The trial court granted restitution
to the engineering company in the amount of $2,340, representing 12 hours of
the victim’s time multiplied by his hourly rate of $195. (Ibid.)
On appeal, the defendant claimed the trial court abused its discretion
by ordering restitution to the engineering company since the victim testified
he made up the 12 billable hours he had lost. (Grandpierre, supra, 66
Cal.App.5th at p. 116.) The Court of Appeal disagreed. The victim’s
testimony that he used 12 work hours he could have billed at $195 per hour
was enough to show by a preponderance of the evidence the company suffered
the $2,340 loss. The court stated, “The 12 hours were real and are gone.”
(Ibid.) Although the victim made up the 12 hours at another time, he “could
have used those 12 hours to bill other clients and earn money for [the
company].” (Ibid.)
The evidence C.B.’s lost billable hours were real and are gone is even
stronger in this case than in Grandpierre, because unlike the victim in
Grandpierre, C.B. did not testify he made up for the lost time at some other
juncture. To the contrary, he expressly testified the lost hours were “just
billable work that will not get done.” As in Grandpierre, Edelen did not
present evidence disproving or undermining C.B.’s claim that his time was
not made up by himself or replaced by the work of other lawyers at his firm.
We reach the same conclusion as in Grandpierre: the trial court did not
abuse its discretion when it ordered restitution of the billable hours C.B. lost
due to the assault.
Finally, Edelen asserts that C.B.’s income losses in April and May 2021
should have been calculated using his monthly base salary of $8,333.33
rather than his billable hourly rate. Once again, this argument lacks
evidentiary support. As Edelen implicitly acknowledges, C.B. testified he
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received two forms of payment from his firm: a base salary, and distributions
of the law firm’s profits, which included amounts he billed and collected. C.B.
claimed a loss of the latter category of income, not the former. The evidence
presented at the restitution hearing was prima facie evidence he suffered the
loss, and Edelen was unsuccessful in his efforts to disprove the claim. The
trial court did not abuse its discretion by ordering restitution to compensate
for this claimed loss. (§ 1202.4, subd. (f)(3)(D).)
III.
Edelen Fails To Establish the Trial Court Abused Its Discretion by Ordering
Restitution of the Retainer and Eviction Fees
Next, Edelen contends the trial court erred by granting C.B. restitution
of the $10,000 retainer he paid the outside law firm to obtain the civil
restraining order against Edelen, and the $8,500 in legal fees and costs he
incurred for the eviction. He challenges each amount on two grounds, one
factual and one legal. As we discuss, neither challenge has merit.
Edelen’s factual challenge to the award of the $10,000 retainer is based
on the timing of C.B.’s payment of the retainer. The receipt produced by C.B.
showed the retainer was paid in July 2021, whereas the temporary
restraining order was sought and granted in April 2021. Edelen argues the
timing of the payment shows something is amiss, because “[a] retainer
happens prior to the work being done.”
Edelen fails to establish an abuse of discretion. C.B. testified the
retainer he paid to the law firm represented legal fees for the civil restraining
order protecting him as well as the apartment complex. This was prima facie
evidence the $10,000 retainer was incurred to obtain the restraining order.
Edelen did not cross examine C.B. about the timing of the payment. His
appellate speculation that the timing of the payment seems wrong does not
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provide this court with a basis for overturning the court’s order. (Mearns,
supra, 97 Cal.App.4th at p. 499.)
Edelen’s factual challenge to the award of $8,500 in eviction fees and
costs is also based on an asserted timing issue. Edelen argues his assault of
C.B. “did not necessitate the eviction” but rather it was the eviction that “was
the catalyst for the incident.” In essence, he argues the eviction happened
before, not after, the incident, such that the required causal nexus between
the claimed economic loss and his criminal conduct is missing.
We reject this argument because it relies on an inaccurate
characterization of the record. According to the evidence presented at the
hearing, the “eviction” Edelen claims was the “catalyst for the incident” was
actually a three-day notice. C.B. testified the document he served on Edelen
immediately before the incident was a “three-day notice to get his act
together or move out.” After he was served with this notice, Edelen did not
correct his behavior. He assaulted C.B., and then he assaulted other tenants.
As C.B. explained, after he served the three-day notice on Edelen, “the
incident happened . . . [and] tenants were very concerned. And once the three
days had lapsed, we needed to get him out.” It was at this juncture that C.B.
asked one of his contract lawyers to file an unlawful detainer action.
Edelen’s claim that the eviction preceded, and was therefore insufficiently
related to, his crimes fails to account for this evidence. He therefore fails to
establish that the award “ ‘ “has no relationship to the crime of which the
offender was convicted.” ’ ” (Anderson, supra, 50 Cal.4th at p. 32.)
Finally, Edelen challenges restitution of C.B.’s legal fees as a matter of
law. Although his argument is not well developed, he essentially contends
that it was improper for the court to order restitution of any of C.B.’s legal
fees at all, because section 1202.4, subdivision (f)(3)(H), makes attorney fees
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recoverable when incurred for collection of restitution, and C.B.’s $10,000
retainer and $8,500 in eviction fees and costs were not incurred for collection
of restitution. The People respond that the court’s exercise of discretion was
appropriate under section 1203.1. Again, we would find no abuse under
either statute.
Edelen’s challenge relies on an overly narrow view of the authority
granted by section 1202.4. It is true that section 1202.4, subdivision (f)(3)(H),
lists “[a]ctual and reasonable attorney’s fees and other costs of collection
accrued by a private entity on behalf of the victim” (italics added) as one of
the items of economic loss subject to reimbursement, which statutory
language could be taken to limit restitution of attorney’s fees to those fees
incurred collecting money from the defendant. (See, e.g., People v. Pinedo
(1998) 60 Cal.App.4th 1403, 1406 [legal fee incurred by victim to recover
damages from the defendant’s insurance carrier recoverable as restitution].)
However, our high court has made clear the list of losses in section
1202.4, subdivision (f)(3), is nonexclusive, and does not impliedly limit the
categories of economic loss that can be recovered by a victim. (Giordano,
supra, 42 Cal.4th at p. 660.) In Kelly, supra, 59 Cal.App.5th 1172, the Court
of Appeal, relying on the breadth of a court’s authority under section 1202.4,
upheld a restitution order granting more than $220,000 in attorney fees and
costs to the victim, Charles Schwab Co., Inc. (Schwab), even though they
were incurred for something other than collecting money from the defendant.
Rather, they were incurred to investigate and prove Kelly, a former Schwab
employee, had violated a workplace restraining order, and to provide
evidence to law enforcement and assist law enforcement in prosecuting Kelly.
(Kelly, at pp. 1177–1178.) Kelly was ultimately convicted of the crimes of
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false personation of another, unauthorized use of personal identifying
information, and disobeying a court order. (Id. at p. 1177.)
On appeal, Kelly argued the trial court abused its discretion by
granting restitution of Schwab’s legal fees and costs because the award was
not authorized by section 1202.4, subdivision (f)(3)(H). The Court of Appeal
disagreed and held the fees and costs were proper because they were
economic losses actually incurred by Schwab as a victim of Kelly’s conduct.
(Kelly, supra, 59 Cal.App.5th at p. 1178.) It observed that “ ‘[b]ecause the
statute uses the language “including, but not limited to” [the statutorily]
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.’ ” (Id. at p. 1179.)
Further, “[r]estitution may include expenses incurred to protect the crime
victim from the defendant.” (Id. at p. 1180.) “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.’ ”
[Citation.] Failure to award them as restitution would be ‘to fail to fully
reimburse’ the victim.” (Ibid.)
Thus, contrary to Edelen’s contention, notwithstanding the apparent
limitation in section 1202.4, subdivision (f)(3)(H), the trial court did not lack
authority to grant restitution of legal fees incurred for something other than
the collection of restitution. This necessarily means the court also did not
lack the legal authority to grant such fees under section 1203.1, since the
scope of the trial court’s discretion to award restitution is even broader under
section 1203.1 than under section 1202.4. And for the reasons we have
already discussed, Edelen fails to establish that the $10,000 retainer or
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$8,500 in eviction fees and costs were insufficiently related to his criminal
conduct to be awardable as restitution under section 1202.4 or 1203.1. As a
result, he fails to establish that the court abused its discretion when it
granted restitution of these losses.
DISPOSITION
The order is affirmed.
DO, J.
WE CONCUR:
IRION, Acting P. J.
BUCHANAN, J.
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