People v. Vo CA6 ( 2024 )

Filed 9/6/24 P. v. Vo CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050473
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1909291)
v.
HONG VO,
Defendant and Appellant.
In a negotiated disposition, defendant Hong Vo pleaded no contest to one count of
identity theft (Pen. Code § 530.5, subd. (a).). The court granted her two years formal
probation, which included a six-month county jail term and a general order of restitution
holding her jointly and severally liable with her co-defendant in the amount of $184,142.
Vo challenges the restitution order, contending joint and several liability is not supported
by an adequate factual basis. Alternatively, she asserts the court miscalculated the
restitution award. The Attorney General concedes that the restitution award is overstated
by $250. We will reduce the award by that amount and affirm the judgment as so
modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
This factual summary is taken from the presentence probation report, the
prosecution’s sentencing memorandum, and victim testimony and other evidence from
the restitution hearing. Vo was a real estate broker who represented Dennis A. in the
purchase of a house in San Jose. (We refer to Dennis A. by his first name to preserve his
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anonymity [California Court Rules, rule 8.90 (a)(4)], intending no familiarity or
disrespect.) Helen Spangler, Vo’s co-defendant, introduced Dennis to Vo and assisted
with the purchase. Dennis believed that Vo and Spangler had a “close relationship” and
were “business partners.”
Dennis did not qualify for financing to purchase the property, so Vo offered to
purchase it for him with the understanding that he would take immediate possession and
live there and she would transfer title to him either after providing him a loan through her
company, Greentronix, or after he obtained his own financing with Spangler’s assistance.
Dennis deposited $200,000 for his future down payment into an escrow account Spangler
controlled, and $23,250 as an earnest money deposit. Although Dennis assumed Vo
bought the house with cash, she actually financed the purchase with two high-interest,
short term loans.
Dennis lived in the house for sixteen months without paying rent or making
mortgage payments. He paid for various repairs and improvements to the property,
including a television antenna. During that time, he frequently asked Spangler about his
loan eligibility status. Spangler assured Dennis “she was working on it,” explaining that
his income from his new job needed to be “seasoned,” and he “had nothing to worry
about.”
Dennis decided to move out of the house after becoming uncomfortable with the
level of crime in the neighborhood. He attempted to transfer the $200,000 he thought
was still in escrow to use as a down payment on another property. At that point, he
discovered the escrow account was empty, and that Spangler had forged his signature and
diverted $200,000 to Greentronix. Dennis learned Vo had used his $200,000 to refinance
her high-interest loans on the property without his knowledge or authorization. Vo
acknowledged to Dennis that she had received the $200,000 from Spangler and initially
agreed to return the money after deducting the rental value for the time he had lived at the
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property. Vo later told him she would only return $10,000. She ultimately paid him
nothing.
Vo sold the property in November 2016. She never transferred title to or obtained
a loan for Dennis. As a result of Vo’s and Spangler’s actions, Dennis lost his deposit
($23,250), his down payment ($200,000), the cost of the television antenna ($92), and the
cost of accounting fees necessary to amend his tax return to reflect his losses ($550).
The Santa Clara County District Attorney charged Vo and Spangler by felony
complaint. Vo was charged with two counts of grand theft of personal property over
$950 (§ 487, subd. (a); counts 2 and 3); use of personal identifying information without
authorization (§ 530.5, subd. (a); count 4); and mortgage fraud (§ 532f, subd. (a)(2);
count 5). The complaint also alleged the charged financial crimes involved taking more
than $100,000. (§ 186.11, subds. (a)(1) & (3).) Vo pleaded no contest to one count of
identity theft. The remaining counts and allegations in the complaint against her were
dismissed with her waiver under People v. Harvey (1979) 25 Cal.3d 754, to allow the
trial court to consider the dismissed counts in its disposition. (People v. Weatherton
(2015) 238 Cal.App.4th 676, 681.)
Following several restitution hearings, including a final hearing where Dennis
testified, the trial court ordered restitution pursuant to Penal Code section 1203.1 (as Vo
was granted probation), Penal Code section 1202.4 (unspecified statutory references are
to the Penal Code), and California Constitution Article 1, section 28 (b)(13). The court
found Vo’s actions were a substantial factor in Dennis’s loss, including her false promise
to transfer the property, knowingly using the $200,000 to pay off the high-interest loans
with the awareness that the money came from Spangler’s forgery of escrow documents,
failing to transfer the home and selling it without Dennis receiving any benefit of his
original $23,250 deposit or the $200,000 that Spangler’s actions caused to accrue to Vo’s
benefit. Based on Dennis’s estimate of the property’s monthly rental value at $2,500, the
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court deducted $40,000 to account for the sixteen months Dennis lived in the property
without paying rent.
The court held Vo and Spangler jointly and severally responsible for restitution to
Dennis as requested in the sum of $184,142, based on a $23,500 “earnest money”
deposit; the $200,000 down payment (less $40,000 for 16 months of rental value at
$2,500 per month); $550 for amended tax returns; and $92 for the television antenna.
II. DISCUSSION
Vo argues the trial court abused its discretion by holding her jointly and severally
liable with Spangler for Dennis’s loss. She contends Spangler was entirely responsible
for Dennis’s loss because it was Spangler who forged his signature and transferred the
escrow funds without his knowledge or consent. Vo asserts she was unaware of
Spangler’s illegal actions and insists that “none of her conduct was criminal” because
Dennis “understood that the money was going toward payments” on the property, “and
all of the funds were actually used for that purpose.”
Vo challenges the trial court’s authority under section 1202.4, which mandates
direct victim restitution in “every case in which a victim has suffered economic loss as a
result of the defendant’s conduct.” (§ 1202.4, subd. (f).)1 Section 1202.4 limits
restitution to losses caused by criminal conduct for which the defendant was convicted.
(Czirban, at p. 1063.); see also People v. Woods (2008) 161 Cal.App.4th 1045, 1049
[“Courts have interpreted section 1202.4 as limiting restitution awards to those losses
arising out of the criminal activity that formed the basis of the conviction.”].)
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Vo does not address the fact that the trial court also ordered restitution under
section 1203.1 as a condition of probation. Because we can affirm the restitution order
under section 1202.4’s narrower standard, we observe without deciding that the order
also would be affirmed under section 1203.1’s more permissive standard for ordering
victim restitution as a probation condition. (See People v Czirban (2022)
77 Cal.App.5th 1050, 1063 [section 1203.1’s “ambit is necessarily broader” than
section 1202.4].)
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A direct victim restitution order under section 1202.4 “ ‘is reviewed for abuse of
discretion and will not be reversed unless it is arbitrary or capricious. No abuse of
discretion will be found where there is a rational and factual basis for the amount of
restitution ordered. “[T]he standard of proof at a restitution hearing is by a
preponderance of the evidence, not proof beyond a reasonable doubt.” … Once the victim
makes a prima facie showing of economic losses incurred as a result of the defendant’s
criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed
by the victim.’ ” (Czirban, supra, 77 Cal.App.5th at p. 1064.)
A. VO IS RESPONSIBLE FOR DENNIS’S LOSS
Vo argues she was not responsible for Dennis’s loss, but she admitted her
culpability by pleading no contest to count 4, identity theft. Her plea is the same as that
of a plea of guilty, which admits every element of the crime charged for all purposes, and
“ ‘is the “legal equivalent” of a “verdict” and is “tantamount” to a “finding.” ’ ” (People
v. Wallace (2004) 33 Cal.4th 738, 749 (Wallace); Pen. Code, § 1016, subd. (3) [“The
legal effect of such a [nolo contendere] plea, to a crime punishable as a felony, shall be
the same as that of a plea of guilty for all purposes.”].) Vo’s plea established Dennis’s
right to restitution as a victim of the offense. (Pen. Code, § 1202.4, subds. (a)(1) & (f);
People v. Giordano (2007) 42 Cal.4th 644, 652; People v. Stanley (2012) 54 Cal.4th 734,
736 [defendant’s plea entitled victim to restitution for damage under section 1202.4].)
Having accepted the benefits of a plea deal, Vo cannot now challenge the
restitution award by disputing the factual basis for the charges or attempting to relitigate
her culpability. (In re Troy Z. (1992) 3 Cal.4th 1170, 1181 [“defendant ‘cannot admit the
sufficiency of the evidence by pleading guilty [or nolo contendere] and then question the
evidence by an appeal’ ”]; People v. Zuniga (2014) 225 Cal.App.4th 1178, 1187 [by
pleading guilty a defendant admits all matters essential to the conviction]; see Wallace,
supra, 33 Cal.4th at p. 750 [defendant who enters into negotiated disposition cannot later
assert insufficient evidence of guilt to support plea and ensuing conviction].)
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Even if it were permissible to revisit culpability, we would reject Vo’s attempt to
deflect all responsibility onto co-defendant Spangler. Contrary to the contention that
there is “no evidence” to support the trial court’s finding that she caused Dennis’s loss,
the evidence in the record supports the trial court’s conclusion that the loss arose directly
from Vo’s criminal conduct. Dennis testified Vo induced him to provide $23,250 in
earnest money to purchase the property and to place $200,000 into an escrow account
controlled by Spangler by promising him that she would eventually transfer title to him.
Dennis also testified that Vo further induced him by offering to provide a loan if he did
not qualify for financing on his own. Vo purchased the property with two high interest
loans and then used Dennis’s escrow funds—without his knowledge or approval—to
refinance them. And despite her promises to transfer title and her assurances that she
would provide financing, Vo ultimately sold the property without Dennis receiving any
benefit from the sale or obtaining any reimbursement of his escrow funds.
The record also refutes Vo’s contention that her conduct was not criminal because
she received the escrow funds and used them as Dennis intended. Dennis testified that he
deposited $200,000 into escrow to use as his future down payment on the property once
he obtained financing; the deposit was not made to allow Vo to refinance her high-
interest, short-term loans, of which Dennis had no prior knowledge. Indeed, if Dennis
had intended for Vo to use his escrow deposit to refinance her loans, Spangler would not
have needed to forge Dennis’s signature and secretly divert the funds to Vo. Nor would
Dennis have attempted to purchase a different home with the escrow funds if he had any
awareness that Vo had already used the money.
Given Vo’s direct responsibility for Dennis’s loss, the trial court did not abuse its
discretion by imposing joint and several liability with Spangler. “ ‘ “Where two or more
persons act in concert, it is well settled both in criminal and in civil cases that each will
be liable for the entire result.” ’ ” (People v. Campbell (1994) 21 Cal.App.4th 825, 834.)
“Joint and several liability … increases the likelihood that the victim will be fully
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compensated,” which “is an important component of the restitution scheme.” (People v.
Zito (1992) 8 Cal.App.4th 736, 744.)
Because Vo’s conduct directly caused Dennis’s loss, her reliance on In re Maxwell
C. (1984) 159 Cal.App.3d 263, and People v. Scroggins (1987) 191 Cal.App.3d 502, is
misplaced. Both cases involved convictions for receiving stolen property and in that
context addressed the limits of restitution for losses associated with the underlying thefts.
In Maxwell C., the minor’s offense was receiving a stolen car stereo. The reviewing
court held that he could not be required to pay restitution for damage to the vehicle
caused in stealing the stereo unless he had also been involved in the stealing. (Maxwell
C., at pp. 265–267.) The Maxwell C. court found the juvenile court had no discretion to
order restitution for losses due to criminal conduct that was neither charged and found
true nor admitted. (Ibid.) Similarly in Scroggins, the defendant was charged only with
receiving stolen property, but he was ordered to pay restitution to burglary victims whose
losses were not connected to his crime. (Scroggins, at p.506.) In contrast here, Vo
pleaded no contest to identify theft, and as we have discussed, there is sufficient evidence
in the record establishing a direct relationship between her conduct and Dennis’s loss.
B. SUFFICIENT EVIDENCE SUPPORTS THE RESTITUTION CALCULATION
Vo argues the trial court abused its discretion by undervaluing the rental value of
the home by $16,000, by overstating the amount of earnest money Dennis paid by $250,
and by ordering her to pay $92 for the television antenna, which she argues Dennis could
have removed and taken with him when he moved out of the home. The Attorney
General concedes that Dennis paid $23,250 earnest money, not the $23,500 referenced in
the court’s order. But we see no abuse of discretion in fixing the rental value of the home
at $2,500 per month rather than $3,500 as urged by Vo. Nor was it an abuse of discretion
to find Dennis was entitled to restitution for the television antenna because it could not be
removed from the property when he moved out.
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Section 1202.4 does not require any particular kind of proof to establish a victim’s
loss. (People v. Lehman (2016) 247 Cal.App.4th 795, 803.) Dennis’s testimony
regarding the television antenna and the property’s fair rental value—as well as Vo’s own
evidence showing the requested rents for similar homes in San Jose—provided a rational
and factual basis for the trial court’s determination. (See People v. Prosser (2007)
157 Cal.App.4th 682, 690–691 [crime victim’s statements about value of stolen property
constitute prima facie evidence of value for restitution purposes]; Lehman, at pp. 801–
805 [upholding restitution award based on victim’s trial testimony, sentencing statement
and probation report]; In re S.O. (2018) 24 Cal.App.5th 1094, 1102–1103 [affirming
restitution order where juvenile court credited victim testimony as to car repair costs and
value of items removed from car]; People v. Panah (2005) 35 Cal.4th 395, 489
[uncorroborated testimony, if credible, may support restitution unless the testimony is
inherently improbable or inherently incredible]; People v. Gemelli (2008)
161 Cal.App.4th 1539, 1544 [corroboration of victim restitution testimony generally not
required for the acceptance of such evidence].)
Vo emphasizes that she researched and produced evidence to support a higher
monthly rental value of $3,500. We have reviewed the record and see no error in the trial
court’s finding that the same evidence supported Dennis’s estimate of the property’s
rental value. To the extent Vo is arguing her evidence of rental value either refuted or
was more persuasive than Dennis’s testimony, in effect she is asking us to reweigh the
evidence. That is not our role in reviewing an order requiring victim restitution. (See
People v. Millard (2009) 175 Cal.App.4th 7, 26; People v. Thomas (2017)
15 Cal.App.5th 1063, 1071.) “In reviewing the sufficiency of the evidence, the ‘ “power
of the appellate court begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted,” to support the trial court’s
findings.’ ” (People v. Baker (2005) 126 Cal.App.4th 463, 468–469.) “If the
circumstances reasonably justify the [trial court’s] findings,’ ‘the judgment may not be
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overturned when the circumstances might also reasonably support a contrary finding. We
do not reweigh or reinterpret the evidence; rather, we determine whether there is
sufficient evidence to support the inference drawn by the trier of fact.’ ” (Id at p. 469.)
We conclude that both Dennis’s testimony and Vo’s own evidence regarding the rental
value of comparable properties provide substantial evidence to support the trial court’s
finding on that point.
III. DISPOSITION
The restitution award is modified to reduce by $250 restitution for the amount of
“earnest money” paid by the victim, resulting in a total award of $183,892 to Dennis A.
As so modified, the judgment is affirmed.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H050473
People v. Vo