People v. Hoffman CA3

Filed 9/13/22 P. v. Hoffman CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Respondent, C092690
v. (Super. Ct. No. CR20192875)
STEVEN BRADLEY HOFFMAN,
Defendant and Appellant.
Defendant Steven Bradley Hoffman pleaded no contest to theft or embezzlement
of property belonging to an elder or dependent adult (his father). (Pen. Code, § 368,
subd. (e).)1 In exchange, the prosecution agreed to dismiss two pending charges of grand
theft of property exceeding $950 in value (§ 487, subd. (a)) with a waiver of defendant’s
rights under People v. Harvey (1979) 25 Cal.3d 754.
The trial court sentenced defendant to four years in prison to be served locally,
including one year of mandatory supervision. It also ordered him to pay victim
1 Undesignated statutory references are to the Penal Code.
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restitution of $1,203,845.67 to his father’s court-appointed conservator, and subsequently
amended the restitution order after the father died to name defendant’s stepmother as the
recipient of the restitution.
Defendant now contends (1) the evidence is insufficient to support a portion of the
restitution award, (2) it was error to amend the restitution order to name the stepmother
as a restitution victim without determining her actual losses attributable to the crime,
and (3) one of the conditions of mandatory supervision indicated that it was “TBD” (to be
determined) and hence must be modified.
Finding merit in defendant’s second and third contentions, we will remand the
matter so the trial court can determine the stepmother’s economic losses attributable to
defendant’s crimes, and we will modify the challenged condition of defendant’s
mandatory supervision. We will affirm the judgment as modified.
BACKGROUND
We limit our recitation of the background to the circumstances relevant to
defendant’s contentions on appeal.
A
An employee of the Yolo County Public Guardian’s office testified at a hearing to
determine victim restitution. (§ 1202.4.) The public employee testified her office
became the court-appointed conservator of the person and estate of defendant’s father.
She said defendant had power of attorney for the father. At the time of appointment, the
conservator took steps to understand the father’s funds and assets.
The conservator determined that when defendant obtained power of attorney, the
father had more than $950,000 in an Exxon retirement account, but when the conservator
was appointed, the balance of the Exxon account was zero. The conservator determined
the father also lost over $78,000 associated with a Chase bank account and over $4,000
associated with a Wells Fargo bank account. In addition, a Capitol One credit card had a
balance of over $10,000, and a Discover Card had a balance of over $7,000. The father
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also owed over $3,000 to Allstate insurance in connection with a January 2019 car
accident involving defendant.
Regarding the Chase account losses, roughly $41,000 resulted from withdrawals
by defendant and roughly $37,000 resulted from online transfers from the bank account
to unknown bank accounts that were not owned by the father and that did not appear to
be legitimate payments for the father’s needs. As for the $37,000 in online transfers, the
conservator did not know if defendant owned the accounts to which the funds were
transferred and did not know who might have had access to the Chase account. But the
public employee agreed that a number of withdrawal slips indicated that some
withdrawals might have been for the father’s bills and the conservator did not include
those funds in its economic loss calculations.
After Chase decided not to do business with defendant and his father anymore,
someone with the same name as defendant opened the Wells Fargo account in the father’s
name and with defendant’s name listed as having power of attorney. Monthly income
that previously went to the Chase account was deposited to the Wells Fargo account and
then withdrawn.
The conservator calculated that the father had $1,203,845.67 in economic loss.
Defense counsel argued that nobody knew where the $37,000 in online transfers from the
Chase account went. Counsel said not every withdrawal could be connected to
defendant’s wrongdoing because bills were being paid and money was legitimately spent.
Defense counsel also took issue with the credit card balances, arguing there was no
testimony about how the balances were incurred, and thus they were not necessarily
attributable to defendant’s offense. But the trial court concluded the amount requested
was reasonably related to the events leading to the conviction and ordered defendant to
pay victim restitution of $1,203,845.67 to the conservator.
After the father died, the conservator asked the trial court to change the restitution
recipient from the conservator to the stepmother on the ground that the restitution
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judgment was community property. Defendant opposed the request. Rather than
substituting the stepmother in place of the conservator as the conservator had requested ,
the trial court added the stepmother, nunc pro tunc, as another restitution victim.
B
A probation officer’s report said defendant admitted he was addicted to gambling,
but that he denied using the father’s funds for his habit. At sentencing, the trial court
sentenced defendant to four years in prison to be served locally, with the last year to be
served on mandatory supervision. Among other things, the trial court referenced
paragraph 23 of the order for county mandatory supervision that the trial court and
defendant signed. That paragraph prohibited gambling by defendant. In addition,
paragraph 5 of the mandatory supervision terms and conditions document stated that
defendant was required to complete any counseling or educational program
recommended by the probation officer “to address the criminogenic needs of TBD.”
(Boldface & underscore in original.) Defense counsel did not object to the terms and
conditions of mandatory supervision reflected in the document.
DISCUSSION
I
Defendant contends the evidence is insufficient to support a portion of the
restitution award. Specifically, he argues there was no evidence that the nearly $50,000
related to the online transfers from Chase, the Discover card, and the amount owed to
Allstate, were losses arising from his conviction.
When a victim incurs economic loss as a result of a crime, the victim is entitled to
restitution from the person convicted of that crime. (§ 1202.4, subd. (a)(1).) Though a
victim generally is not entitled to restitution for an economic loss arising from activity for
which the defendant was not convicted (People v. Percelle (2005) 126 Cal.App.4th 164,
180; People v. Rubics (2006) 136 Cal.App.4th 452, 460, overruled on other grounds in
People v. Martinez (2017) 2 Cal.5th 1093, 1107, fn. 3), “[w]hen the defendant enters a
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negotiated disposition, with counts dismissed subject to a Harvey waiver, the court can
consider the dismissed counts for purposes of sentencing and restitution. [Citations.]”
(People v. Hume (2011) 196 Cal.App.4th 990, 996.)
Restitution for economic loss arising from the crime for which defendant was
convicted must be in an amount established by the trial court based on the amount
claimed by the victim or any other showing to the court. (§ 1202.4, subd. (f).) Once the
People have made a prima facie showing of economic loss resulting from defendant’s
unlawful conduct, the burden shifts to the defendant to demonstrate that the restitution
amount is not proper or should be different. (People v. Chappelone (2010)
183 Cal.App.4th 1159, 1172 (Chappelone).)
Regarding the necessary prima facie showing, “it is well settled that ‘statements
by the victims of the crimes about the value of the property stolen constitute “prima facie
evidence of value for purposes of restitution.” ’ ” (People v. Prosser (2007)
157 Cal.App.4th 682, 690.) If the thief has disposed of the property and is, like the
victim, ill positioned to provide an accounting of the property taken, it is a situation of the
thief’s own making, and as between the victim and the thief, the equities favor the victim.
(Id. at p. 691.)
The trial court may not make an order that is arbitrary or capricious. (Chappelone,
supra, 183 Cal.App.4th at p. 1172.) We review the trial court’s restitution order for
abuse of discretion. (Id. at p. 1173.) Where there is a factual and rational basis for the
order, an abuse of discretion will not be found. (People v. Millard (2009)
175 Cal.App.4th 7, 26.) In determining whether there is a factual basis for the order, we
apply the substantial evidence standard. (Ibid.) But “the standard of proof at a restitution
hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.
[Citation.] ‘If the circumstances reasonably justify the [trial court’s] findings,’ the
judgment may not be overturned when the circumstances might also reasonably support a
contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we
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determine whether there is sufficient evidence to support the inference drawn by the trier
of fact. [Citations.]” (People v. Baker (2005) 126 Cal.App.4th 463, 469 (Baker).)
Defendant argues there was insufficient evidence to show that roughly $37,000 in
online transfers from the Chase account to unknown bank accounts not owned by the
father were attributable to defendant. Defendant maintains that the public employee who
testified at the restitution hearing “did not know who made the transfers, who owned the
accounts into which these funds were transferred,” and “who else, besides [defendant],
had access to the account information.” Citing the preliminary hearing transcript,
defendant observes that other family members must have had access to the Chase account
because others were paying the father’s bills with the Chase account before defendant
took over.
The trial court did not abuse its discretion, as there is a factual and rational basis
for the order of restitution for the roughly $37,000 in online transfers from the Chase
account. Defendant does not dispute that he stole nearly $1,000,000 from his father’s
Exxon retirement account, over $4,000 from his father’s Wells Fargo account, and
roughly $41,000 in non-online transfers from the Chase account (mostly cash
withdrawals in defendant’s name). That defendant stole from multiple distinct pots of his
father’s money, including cash withdrawals from the very same Chase account at issue
here, supports a rational inference that defendant also stole the roughly $37,000 that was
transferred online from that account. That the trial court could have made different
reasonable inferences does not require reversal. (Baker, supra, 126 Cal.App.4th at
p. 469.)
Further, we reject defendant’s invocation of evidence from the preliminary
hearing, as defendant has not demonstrated that the preliminary hearing transcript was
admitted into evidence at the restitution hearing. Defendant provides no authority for the
proposition that, simply because the preliminary hearing transcript was used as a factual
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basis for his no contest plea, it became restitution evidence even though neither party
sought to admit it.
Defendant also argues there was insufficient evidence that the unpaid Discover
card balance of over $7,000 was attributable to him. He argues he was never an
authorized user on the account, the account was opened in the 1990’s, and no evidence
was presented that any transactions on the account were made during the period when
defendant stole from his father.
The trial court did not abuse its discretion, as it is undisputed on appeal that
defendant was responsible for an unpaid balance of over $10,000 associated with a
Capital One credit card that belonged to his father. The fact that defendant misused one
credit card belonging to his father supports the inference that he misused the other credit
card. That the trial court could have made different reasonable inferences does not
require reversal.
In addition, defendant argues there was insufficient evidence linking the roughly
$3,000 owed to Allstate to defendant’s crime because there was no evidence regarding
the circumstances of the traffic accident or that the insurance circumstances had anything
to do with defendant’s theft. But the argument is forfeited because defendant did not
raise it at the restitution hearing. (See People v. Anderson (2010) 50 Cal.4th 19, 26, fn. 6
[“Defendant has waived a claim of error as to the amount of restitution by failing to
object on that ground in the trial court.”]; People v. Mays (2017) 15 Cal.App.5th 1232,
1237 [“A defendant wishing to argue on appeal that there is no factual basis for a
restitution order must object on that ground in the trial court to preserve the issue for
appeal.”].)
Although defendant also invokes the federal Constitution in challenging the trial
court’s restitution order, he provides no separate argument regarding the ostensible
violation of his federal rights. Accordingly, we have limited our analysis to developed
argument. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [“ ‘[E]very brief should
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contain a legal argument with citation of authorities on the points made. If none is
furnished on a particular point, the court may treat it as waived, and pass it without
consideration.’ ”].)
II
Defendant next claims it was error to amend the restitution order to name the
stepmother as a restitution victim without determining her actual losses attributable to the
crime. The People agree.
“Article I, section 28 was added to the California Constitution by initiative
measure adopted by the voters June 8, 1982. Subdivision (b) provides, in part, ‘that all
persons who suffer losses as a result of criminal activity shall have the right to restitution’
and that ‘[r]estitution shall be ordered from the convicted persons in every case,
regardless of the sentence or disposition imposed, in which a crime victim suffers a loss,
unless compelling and extraordinary reasons exist to the contrary. The Legislature shall
adopt provisions to implement this section during the calendar year following adoption of
this section.’
“Implementing legislation was added to Penal Code section 1202.4 that now
provides, in relevant part that ‘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. 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 unless it finds compelling and extraordinary reasons for not
doing so, and states them on the record.’ (§ 1202.4, subd. (f).)” (People v. Bufford
(2007) 146 Cal.App.4th 966, 969-970, fn. omitted (Bufford).)
“Section 1202.46 specifically provides that ‘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
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order for purposes of imposing or modifying restitution until such time as the losses may
be determined. Nothing in this section shall be construed as prohibiting 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
without a finding of compelling and extraordinary reasons pursuant to Section 1202.4.’ ”
(Bufford, supra, 146 Cal.App.4th at p. 970.)
Here, following the father’s death, the court-appointed conservator of the estate
of the father asked the trial court to change the restitution recipient from the conservator
to the stepmother. But the trial court instead added the stepmother, nunc pro tunc, as
another restitution victim. While the trial court may be correct that the stepmother
sustained her own losses as a result of defendant’s criminal conduct, the Attorney
General agrees the matter should be remanded for a hearing to determine the actual
amount of the stepmother’s losses. Accordingly, we will vacate the trial court’s
April 2021 order identifying the restitution amount owed to the stepmother and remand
for further proceedings.
III
In addition, defendant claims one of the conditions of mandatory supervision
indicated that it was “TBD” (to be determined). He argues the condition is overbroad and
improperly delegates judicial decision-making power.
We review the trial court’s imposition of conditions of mandatory supervision for
abuse of discretion, analyzing “the validity of the terms of supervised release under
standards ‘parallel to those applied to terms of parole.’ ” (People v. Malago (2017)
8 Cal.App.5th 1301, 1306.) Parole is meant to help individuals reintegrate as law-abiding
and constructive members of society. To further that goal, the state may impose any
condition reasonably related to that goal. (Ibid.)
A defendant who does not challenge the reasonableness of a probation condition in
the trial court forfeits the ability to do so on appeal. (In re Sheena K. (2007) 40 Cal.4th
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875, 882.) Recognizing that defendant did not object in the trial court to the condition he
challenges on appeal, here he asserts only a facial challenge to the condition. He may do
so. (Id. at pp. 887-889.)
“It is well settled that courts may not delegate the exercise of their discretion to
probation officers.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372.) For example,
in People v. Cervantes (1984) 154 Cal.App.3d 353, the trial court ordered the defendant
to pay restitution “in an amount and manner to be determined by the probation officer.”
(Id. at p. 355.) On appeal, the court held that the trial court improperly delegated
“unlimited discretion to a probation officer to determine the propriety, amount, and
manner of payment of restitution,” noting, “these determinations are essentially judicial
functions.” (Id. at p. 358.) Similarly, in People v. O’Neil (2008) 165 Cal.App.4th 1351,
the trial court ordered the defendant, who was convicted of possession of narcotics for
sale, to refrain from “associating with persons designated by his probation officer.” (Id.
at p. 1354.) The appellate court held this also amounted to an improper delegation of
unlimited discretion to the probation officer because the condition “did not in any way
define the class of persons who could be so designated.” (Id. at p. 1358.) The appellate
court continued: “While the [trial] court may well have anticipated that the probation
officer would specify individuals known to be using or dealing in illicit drugs, . . . ‘this
factor should not be left to implication.’ [Citations.]” (Ibid.)
Here, the challenged condition orders defendant to “complete any counseling or
educational program recommended by the Probation Officer, specifically to address the
criminogenic needs of TBD,” but does not define the type of counseling or education
defendant is to obtain, instead giving the probation officer unlimited discretion to select
not only the specific counseling program (see People v. Penoli (1996) 46 Cal.App.4th
298, 308 [delegation of authority to probation officer to select specific drug rehabilitation
program upheld because “trial court is poorly equipped to micromanage selection of a
program”]), but also the type of counseling or treatment defendant is to receive.
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Defendant urges us to replace the word “criminologic” with “gambling, theft or
embezzlement” and strike the “TBD.” We will modify the challenged condition to state
that defendant shall: “Participate in and complete any counseling or educational program
recommended by the probation officer that addresses gambling, theft, or embezzlement.”
DISPOSITION
The order requiring defendant to make restitution to the stepmother in the amount
of $1,203,845.67 is vacated. The matter is remanded so that the trial court can hold a
hearing to determine the stepmother’s economic losses attributable to defendant’s
unlawful conduct. The condition of defendant’s mandatory supervision requiring him to
participate in and complete counseling or educational programing is modified to provide:
“Participate in and complete any counseling or educational program recommended by the
probation officer that addresses gambling, theft, or embezzlement.” The judgment is
affirmed as modified.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
EARL, J.
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