People v. Adams CA1/3 ( 2024 )

Filed 10/24/24 P. v. Adams CA1/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A169169
v.
CHRISTINE AMY ADAMS, (Napa County
Super. Ct. No. CR184934)
Defendant and Appellant.
Defendant Christine Amy Adams appeals from an order awarding
restitution to two crime victims. On appeal, she contends: (1) the trial court
had no jurisdiction when it prescribed the restitution amounts because her
term of probation had expired by that time; (2) the court abused its discretion
and violated her due process rights because the restitution amounts were
unsupported by a factual or rational basis; and (3) equity barred the People
from seeking a restitution order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2017, the People charged defendant with identifying
information theft of 10 or more persons (Pen. Code, § 530.5, subd. (c)(3),1
1 All further undesignated statutory references are to the Penal Code.
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count 1), identifying information theft with a prior (§ 530.5, subd. (c)(2),
count 2), false personation (§ 529, count 3), giving false information to a
police officer (§ 148.9, subd. (a), count 4), and possession of controlled
substance paraphernalia (Health and Saf. Code, § 11364, count 5).
Defendant pleaded no contest to counts 1 and 3.2 Per the terms of her
plea agreement, the remaining counts would be dismissed, but the court
could consider the dismissed charges in determining the appropriate sentence
and restitution. (People v. Harvey (1979) 25 Cal.3d 754.) In her plea form,
defendant affirmed her understanding that she may be ordered to pay
restitution to the victims, if any. The probation report filed for the
sentencing hearing presented details regarding the crimes and the victims.3
On December 11, 2017, the trial court suspended imposition of a sentence
and placed defendant on three years of formal probation. The court ordered,
as a term of probation, that defendant pay restitution to several victims,
including Nicole W. and John H., in amounts to be determined by the court.
In September and October 2023, the trial court held restitution
hearings. The People requested $1464 for victim Nicole W. and $1000 for
victim John H., as well as $208.47 for victim Elmor E. and $21,092 for victim
Alma C. The People presented exhibits to support the requests. Defendant
did not object to the court’s jurisdiction to set the amounts of restitution, and
indicated she would remain on probation until December 2023. The trial
court ordered defendant to pay the requested amounts of restitution only as
2 In the same plea form, defendant also admitted to probation violations
in three other cases.
3 A detailed summary of the underlying offenses is unnecessary to
resolve the issues on appeal. But, in short, the probation report indicates
defendant was found with the personal identifying information of various
people, a number of whom indicated someone had opened or applied for lines
of credit, cashed checks, purchased vehicles, etc., in their names.
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to Nicole W. and John H. Defendant filed this appeal challenging the
restitution awards.
DISCUSSION
A. Jurisdiction
Relying on section 1203.3, defendant contends the trial court had no
jurisdiction to make the restitution awards for the two victims because it did
so after her probation period expired. She also argues that section 1202.46
did not extend the court’s jurisdiction to make the awards because the
victims’ losses were known for six years before the restitution amounts were
set. We examine these claims below.
1. Legal Principles
Article I, section 28, subdivision (b)(13), of the California Constitution
establishes that victims have a right “to seek and secure restitution from the
persons convicted of the crimes causing the losses they suffer” and that
restitution shall be ordered from every convicted wrongdoer when a victim
suffers a loss, “regardless of the sentence or disposition imposed.”
Section 1202.4 implements this constitutional provision (People v. Smith
(2011) 198 Cal.App.4th 415, 431), declaring: “It is the intent of the
Legislature that a victim of 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).)
Section 1202.4, subdivision (a)(3), provides that courts must order
victim restitution in accordance with subdivision (f) of section 1202.4, which
states: “[I]n every 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
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other showing to the court. If the amount of loss cannot be ascertained at the
time of sentencing, the restitution order shall include a provision that the
amount shall be determined at the direction of the court. The court shall
order full restitution.” (Italics added.)
Section 1203.3, subdivision (a) provides, in relevant part: “The court
has the authority at any time during the term of probation to revoke, modify,
or change its order of suspension of imposition or execution of sentence.”
(Italics added.) It also provides: “This section does not prohibit the court
from modifying the dollar amount of a restitution order pursuant to
subdivision (f) of Section 1202.4 at any time during the term of the
probation.” (§ 1203.3, subd. (b)(5).)
Section 1202.46 provides: “when the economic losses of a victim cannot
be ascertained at the time of sentencing pursuant to subdivision (f) of
Section 1202.4, the court shall retain jurisdiction over a person subject to a
restitution order for purposes of imposing or modifying restitution until such
time as the losses may be determined. This section does not prohibit a victim,
the district attorney, or a court on its own motion from requesting correction,
at any time, of a sentence when the sentence is invalid due to the omission of
a restitution order or fine pursuant to Section 1202.4.” (Italics added.)
In reviewing these statutory provisions, the California Supreme Court
held that “section 1203.3 does not set a strict statutory deadline for specifying
the amount of victim restitution,” and that sentencing courts in probation
cases retain jurisdiction pursuant to section 1202.46 to fix the amount of
victim restitution until the amount of the victim’s losses can be determined,
even after the term of probation has terminated. (People v. McCune (2024) 16
Cal.5th 980, 991–996, 1000 (McCune).) Importantly, however, the high court
made clear its holding “does not mean that there are no timing limitations at
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all.” (Id. at pp. 1000–1001.) As the court emphasized, “The statutory
framework permits a trial court to retain jurisdiction to fix the restitution
amount only if losses ‘cannot be ascertained at the time of sentencing,’ and
only ‘until such time as the losses may be determined.’ (§ 1202.46.)” (McCune,
at p. 1001, italics added.)
2. Analysis
As indicated, defendant contends that, under section 1203.3, the trial
court’s authority to set restitution amounts is limited to the probationary
period, and that here, section 1202.46 did not extend the court’s jurisdiction
to make the awards to John H. and Nicole W. because their losses were
ascertainable long before her probation term ended. (See McCune, supra, 16
Cal.5th at p. 1001.) Though we might agree that the losses of Nicole W. and
John H. appeared to have been ascertainable long before the restitution
hearing in 2023, that circumstance is not dispositive here.
As defendant acknowledges, section 1203.3, subdivision (a), authorizes
a trial court to set a restitution amount “at any time during the term of
probation.” Here, the record indicates the restitution amount was set while
defendant was still on probation. As the People point out, in the transcript of
one of the 2023 restitution hearings, defense counsel informed the court that,
due to tolling, defendant remained on probation until December 2023:
“THE COURT: This is a 2017 sentencing. Why are we talking about
restitution orders in 2023? Is she even still on probation?
“[Defense counsel]: She is because I think her probation was tolled.
“THE COURT: She had a number of violations of probation, I recognize
that.
“[Defense counsel]: And I think her probation now expires the end of
this year, December 22nd [2023].”
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Defendant’s only response to the foregoing is a single sentence in her
opening brief—later repeated in her reply brief—where she asserts:
“Statements made by defense counsel expressing a belief of possible tolling
were never verified and the record fails to reflect any such tolling.” This,
however, misapprehends established principles of appellate review. It is well
settled that “ ‘[a] judgment or order of the lower court is presumed correct.
All intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown.” (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) “The party
appealing has the burden of overcoming the presumption of correctness. For
this purpose, [the appellant] must provide an adequate appellate record
demonstrating the alleged error. Failure to provide an adequate record on an
issue requires that the issue be resolved against the appellant.” (Defend
Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167
Cal.App.4th 846, 859–860.)
Apart from defense counsel’s representation to the trial court, the
record is otherwise silent as to whether defendant was still on probation at
the time of the 2023 restitution hearings. Defendant said nothing when her
counsel told the court she was on probation until December 22, and on appeal
defendant identifies no evidence in the record and presents no argument
demonstrating the impossibility of her being on probation at the time of the
hearings.4 Consequently, defendant has not overcome the presumption that
4 There is authority indicating it was not an impossibility. In People v.
Leiva (2013) 56 Cal.4th 498, for example, the high court explained that “a
trial court can find a violation of probation and then reinstate and extend the
terms of probation ‘if, and only if, probation is reinstated based upon a
violation that occurred during the unextended period of probation.’
[Citation.] This result fairly gives the defendant, if he prevails at the formal
violation hearing, the benefit of the finding that there was no violation of
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the trial court acted appropriately within the framework of section 1203.3 to
set the amount of victim restitution, regardless of section 1202.46.
In sum, we reject defendant’s jurisdictional challenge to the award of
restitution.
B. The Restitution Amounts
Defendant next contends the trial court abused its discretion and
violated her due process rights because there was no factual or rational basis
supporting the restitution awards.
First, defendant points out that John. H. simply said, years after the
crime, that he lost wages while having to speak with multiple creditors and
banks. But, defendant complains, John H. provided no documentation, sworn
declaration, or other evidence justifying how he spent his time, or supporting
the reasonableness of his claimed rate of $50 per hour.
Second, defendant contends probation did not timely investigate Nicole
W.’s restitution claim and did not obtain her sworn declaration. Though
defendant acknowledges that Nicole W. “produced credible documentation
probation during the probationary period. [¶] On the other hand, if the
prosecution, at the formal violation hearing held after probation normally
would have expired, is able to prove that the defendant did violate probation
before the expiration of the probationary period, a new term of probation may
be imposed by virtue of section 1203.2, subdivision (e), and section 1203.3.”
(Leiva, at p. 516, fn. omitted, italics added; see § 1203.2, subd. (e) [“If an
order setting aside the judgment, the revocation of probation, or both is made
after the expiration of the probationary period, the court may again place the
person on probation for that period and with those terms and conditions as it
could have done immediately following conviction.”]; see also People v.
Ornelas (2023) 87 Cal.App.5th 1305, 1311–1313 [a court reinstating
probation after a summary revocation may extend the date of the termination
of probation 129 days without increasing the probation term beyond the
statutory two-year maximum period because the defendant absconded from
probation supervision for 129 days].)
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that three checks totaling $929 were dishonored,” she contends the papers
also disclose Nicole W. had “consumer rights” to request a refund for losses
suffered, and there is no way to know if she exercised these rights and was
already compensated. And while there is evidence Nicole W. disputed and
“succeeded in getting changed to ‘disputed’ ” a line of credit taken out in her
name, defendant asserts that “[n]othing in these documents relates to actual
financial loss in any amount.” As for Nicole W.’s handwritten ledger showing
her total losses amounted to $1,464, defendant argues the document
“reveal[s] no useful insight into any actual out of pocket loss” and is not
credible evidence of loss. None of defendant’s contentions is persuasive.
Again, subdivision (f) of section 1202.4 states: “[I]n every 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.” (Italics
added.) Subdivision (f)(3) of section 1202.4 requires, to the extent possible,
that restitution be ordered in “a dollar amount that is sufficient to fully
reimburse the victim or victims for every determined economic loss incurred
as the result of the defendant’s criminal conduct,” including the value of
stolen or damaged property, lost wages, and “[e]xpenses for a period of time
reasonably necessary to make the victim whole, for the costs to monitor the
credit report of, and for the costs to repair the credit of, a victim of identity
theft, as defined in Section 530.5.” (§ 1202.4, subd. (f)(3)(A), (D), (L).)
It bears emphasizing that section 1202.4 “does not, by its terms,
require any particular kind of proof.” (People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542–1543 (Gemelli).) The weight of authority holds that
“[a] victim’s statement of economic loss is prima facie evidence of loss.” (See
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People v. Grandpierre (2021) 66 Cal.App.5th 111, 115 (Grandpierre); People v.
Weatherton (2015) 238 Cal.App.4th 676, 684 (Weatherton); Gemelli, at
pp. 1542–1543; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406–1407
(Pinedo).) “Restitution hearings are intended to be informal” (Weatherton, at
p. 684), and a victim’s claim need not be substantiated through particular
testimonial evidence or documentation (In re S.S. (1995) 37 Cal.App.4th 543,
547, fn. 2 (S.S.)).
In this regard, a trial court is entitled to accept as prima facie evidence
of loss a property owner’s statement made in a probation report about the
value of stolen or damaged property. (Weatherton, supra, 238 Cal.App.4th at
p. 684.) Courts have also accepted a victim’s unsworn written itemization of
losses as prima facie evidence of the loss. (E.g., S.S., supra, 37 Cal.App.4th
at pp. 545, 548, fns. 1–2 [noting no apparent authority requiring a victim to
“supply a sworn proof of loss or detailed documentation of costs and
expenses”]; Gemelli, supra, 161 Cal.App.4th at pp. 1544–1545.) To rebut a
prima facie case, the defendant must offer contrary information showing “the
amount claimed is excessive.” (Weatherton, at p. 684; Pinedo, supra, 60
Cal.App.4th at pp. 1406–1407 [probation report requested restitution award
of $7,000 to cover attorney fees “and it was up to appellant to demonstrate
this amount was unreasonable”].)
“The standard of proof at a restitution hearing is preponderance of the
evidence,” and a victim restitution order is generally reviewed for abuse of
discretion. (Grandpierre, supra, 66 Cal.App.5th at p. 115.) “When . . . the
gist of the appellant’s argument is that the evidence before the trial court was
insufficient to establish the amount awarded, we review for substantial
evidence.” (In re Travis J. (2013) 222 Cal.App.4th 187, 203.)
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Here, the trial court admitted into evidence documents from the
probation department indicating the probation officers confirmed the
requested restitution amounts in conversations with each victim. John H.
stated he was unable to provide documentation, but he verbally reported his
losses. Beyond verbally communicating her losses, Nicole W. provided
supporting documentation, including copies of three checks that her bank
returned for being “Altered/Fictitious,” and what appears to be a handwritten
ledger of her losses. Additionally, an earlier 2017 probation report identified
both Nicole W. and John H. as victims and contained statements concerning
their losses that were consistent with the statements they made in 2023. As
recounted above, case law recognizes that these communications sufficed as
prima facie evidence of the claimed losses and that additional documentation
and sworn statements were not required to further substantiate the losses.
In arguing to the contrary, defendant relies on People v. Vournazos
(1988) 198 Cal.App.3d 948 (Vournazos). There, the Court of Appeal found a
restitution order was unsupported by substantial evidence, stating: “[In]
ordering defendant to pay [$2,180] in restitution, the trial court relied
entirely on the recommendation of defendant’s probation officer who, in turn,
derived the figure solely from [the victim’s] statement of loss and his
discussions with [the victim]. Neither the statement nor the testimony of the
probation officer established that the sum claimed by [the victim] for loss of
property was based on the replacement cost of the property. Further, there
was no evidence that the sum of $300 claimed for repair of damage to the
[stolen car] represented the actual cost of the repair. While a defendant
bears the burden of proving that the amount of restitution claimed by the
victim exceeds repair or replacement cost of lost or damaged property (People
v. Hartley [(1980)] 163 Cal.App.3d 126, 130 (Hartley)), defendant here was
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not required to meet that burden inasmuch as the replacement or repair cost
of [the victim’s] property was not established.” (Vournazos, at pp. 958–959.)
We find defendant’s reliance on Vournazos unavailing.
In particular, the analysis in Vournazos has been repeatedly criticized.
(E.g., Gemelli, supra, 161 Cal.App.4th at pp. 1542–1543; S.S., supra, 37
Cal.App.4th at pp. 546–547; People v. Foster (1993) 14 Cal.App.4th 939, 945–
946, superseded by statute on other grounds as stated in People v. Sexton
(1995) 33 Cal.App.4th 64, 69–71; cf. People v. Pittman (2024) 99 Cal.App.5th
1252, 1259–1260 [referring to the approach in People v. Harvest (2000) 84
Cal.App.4th 641, and the similar approach in Vournazos, as “unduly
restrictive” and also referring to the “approach taken in the Foster line of
cases” as stating “the majority view”].) In S.S., a different division of this
court criticized Vournazos’ professed reliance on People v. Hartley, supra, 163
Cal.App.3d 126, because Hartley actually held that a probation report alone
could establish the amount of a victim’s losses, and that a defendant has the
burden of refuting statements in a probation report. (S.S., at p. 546; see
Hartley, at p. 130 & fn. 3.)
Defendant fails to acknowledge the line of cases holding that “[a]
victim’s statement of economic loss is prima facie evidence of loss” (see
Grandpierre, supra, 66 Cal.App.5th at p. 115), much less explain why the
approach in Vournazos is correct despite overwhelming criticism. As
defendant provides no argument addressing the weight of authority on the
topic, we see no reason to adopt the approach in Vournazos.
In sum, we reject defendant’s challenge to the court-ordered restitution
amounts.
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C. Equity
Defendant argues that principles of equity and the doctrine of equitable
estoppel barred the restitution order because the People engaged in
unjustified delay for years. That is, the People should be “estopped by
acquiescence in seeking such belated restitution orders” and the delay
violated defendant’s right to a fair hearing because “memories would have
dimmed and/or documentation might have been mislaid or destroyed.” We
reject this.
Generally, “issues not raised in the trial court cannot be raised for the
first time on appeal.” (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603.)
Here, defendant never raised these claims in the trial court. Defendant never
objected to the requested amounts of restitution on grounds of equity or
estoppel; nor did she assert that her right to a fair hearing was undermined
because of faded memories or lost documentation. Moreover, defendant cites
no authority indicating the propriety of relying on “equity” to reverse
restitution awards, and she omits to explain what circumstances should be
considered in balancing the equities here (see Lickiss v. Financial Industry
Regulatory Authority (2012) 208 Cal.App.4th 1125, 1133–1134).
Finally, defendant’s citation to case law setting out the doctrine of
equitable estoppel (e.g., Schafer v. City of Los Angeles (2015) 237 Cal.App.4th
1250) fares no better. The equitable estoppel doctrine requires a moving
party to show they suffered injury in reliance on the conduct of the party to
be estopped. (Id. at p. 1261.) But the record reflects that defendant knew, as
early as 2017 when the trial court first ordered payment of victim restitution
in an amount to be determined, that John H. and Nicole W. were identified as
victims of her identity theft. Moreover, defendant offers no record citations
or persuasive argument indicating that the relatively modest restitution
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awards here—to which the two victims indisputably had a right under
article I, section 28, subdivision (b)(13), of the California Constitution—
caused any particular injury or injustice to her.
In sum, we reject defendant’s claims seeking relief on grounds of equity
or estoppel or the right to a fair hearing.
DISPOSITION
The judgment is affirmed.
_________________________
Fujisaki, Acting P. J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Rodríguez, J.
People v. Adams (A169169)
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