People v. Oliphant CA2/7

Filed 12/7/20 P. v. Oliphant CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B294384
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA074495)
v.
JACQUE OLIPHANT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael K. Kellogg, Judge. Affirmed.
William L. Heyman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Susan S. Pithey and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
INTRODUCTION
Jacque Oliphant appeals from the trial court’s order
revoking and then reinstating his probation and increasing the
amount of his monthly victim restitution payment from $150 to
$1,000. Oliphant argues the trial court abused its discretion in
determining that he had the ability to pay the increased amount
in monthly restitution. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Oliphant Is Ordered to Pay $50,000 in Victim Restitution
as a Condition of His Probation
In a felony complaint, the Los Angeles County District
Attorney charged Oliphant with 12 counts of theft-related
offenses. The charges arose out of an alleged conspiracy between
Oliphant and his codefendant, Michael Spinale, to steal a number
of items from the home of Maria Welsh while she was out of town
for several months due to a family illness. On August 20, 2014,
Oliphant pleaded no contest to one count of receiving stolen
property.
On May 20, 2015, the trial court placed Oliphant on formal
probation for three years subject to certain terms and conditions.
One condition of probation was that Oliphant and Spinale pay
restitution to the victim, Welsh, in the stipulated amount of
$50,000 pursuant to Penal Code section 1202.4, subdivision (f).1
The court dismissed the remaining counts against Oliphant
pursuant to a negotiated plea.
1 All further statutory references are to the Penal Code.
2
On September 13, 2017, the trial court issued an order
stating Oliphant and Spinale were joint and severally liable for
$50,000 in victim restitution, and directing them to pay that
amount to Welsh for the value of her stolen or damaged property.
The Trial Court Holds an Ability-to-pay Hearing on
Oliphant’s Monthly Restitution Payment
Starting on October 10, 2017 and concluding on August 31,
2018, the trial court held a multi-day hearing on Oliphant’s
ability to pay the monthly restitution owed. Two financial
evaluators, Oliphant’s probation officer, and Kimberly
Henderson, Oliphant’s girlfriend, were called to testify. At the
conclusion of the first day of testimony, the court extended
Oliphant’s probation to May 20, 2019 pending completion of the
hearing.
The probation department initially required Oliphant to
pay $25 per month in restitution. After Welsh complained the
monthly payment was too low, the department conducted an
updated financial evaluation of Oliphant in June 2017, and then
increased the restitution payment to $150 per month. Luisa
Lazo, a financial evaluator with the department, conducted the
June 2017 evaluation. Oliphant was uncooperative with Lazo
during the evaluation, and he provided only a limited number of
the documents Lazo had requested. Margaret Chavez, a senior
financial evaluator with the department, took over the case
following Lazo’s death. Chavez conducted a second evaluation of
Oliphant in February 2018, and a third evaluation in August
2018.
At the hearing, Chavez testified about the contents of
Lazo’s case file and Chavez’s own evaluations of Oliphant.
3
According to Lazo’s file, when Oliphant met with her for the June
2017 evaluation, he was evasive and irate. He told Lazo he
owned two entertainment-related businesses and had bank
accounts and filed income taxes for those entities. Oliphant
refused, however, to provide any financial records related to his
businesses because he claimed such information was confidential.
Oliphant also told Lazo he paid over $2,000 per month in rent
and leased an automobile, but refused to provide proof of either
expense. Because Oliphant was being uncooperative, Lazo
requested that the supervising deputy of probation and
Oliphant’s probation officer assist with the evaluation. Oliphant
thereafter changed his story, telling Lazo his female friend
financially supported him. Oliphant gave Lazo a letter from his
friend confirming her financial support. He also provided copies
of his social security and identification cards and a credit report.
Lazo learned at that time that Oliphant had a second social
security number. Lazo later generated a “Lexis Nexis report” for
Oliphant, which showed he owned eight properties and two
businesses.
When Chavez met with Oliphant in February 2018,
Oliphant reported he was not currently employed and was
financially supported by Henderson. Oliphant claimed his only
expense was a lease on a 2017 Jaguar. The monthly payment for
the lease was $754.27, and the monthly payment for automobile
insurance was $291.65. Oliphant provided Chavez with an
updated letter of financial support from Henderson and billing
statements for the automobile lease and insurance. Although
both the lease agreement and insurance policy were in his name,
Oliphant claimed Henderson was covering those expenses.
Oliphant also provided Chavez with tax records, which reflected
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he did not file personal income tax returns in 2014, 2015, and
2016. Oliphant did not provide any documents related to any
businesses he owned and, despite his prior representation to
Lazo, he denied he had filed income tax returns for any business.
A report generated by Chavez indicated Oliphant owned a
number of different properties, including a residence in
Philadelphia, Pennsylvania he had purchased in May 2017 for
$245,000. Oliphant told Chavez, however, he no longer owned
those properties due to a divorce. Despite Chavez’s request,
Oliphant did not provide any documents showing any assets or
income.
When Chavez met with Oliphant again in August 2018,
Oliphant reported he was still being fully supported by
Henderson. As part of her evaluation, Chavez had obtained a
copy of Oliphant’s lease agreement for the Jaguar, which showed
Oliphant made a $3,000 cash down payment on the lease in
December 2016. A copy of a 2016 pay stub was also attached to
the lease agreement, and reflected Oliphant was paid $9,000
from a company for a two-week period in November 2016. When
Chavez showed the pay stub to Oliphant, Oliphant admitted he
had worked for the company, but claimed the earnings shown on
the document were merely a projection of his income. Chavez
also inquired about the Philadelphia property Oliphant had
purchased in May 2017. Oliphant indicated the property was the
result of a gift from a family member, and his son and his son’s
mother were residing there. Although Oliphant claimed the
mother was paying the mortgage on the property, he did not
provide any supporting documentation. In response to Chavez’s
inquiry about his efforts to obtain employment, Oliphant
indicated he was not working because he had a felony conviction.
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He then stated he was trying to start a private business with a
partner, but could not do so because of the restrictions on his
ability to travel. At the end of the evaluation, Chavez did not
further increase the monthly restitution, but she encouraged
Oliphant to pay more than the minimum amount due. Oliphant
agreed he would try to pay at least $300 per month.
Herman Sweet was Oliphant’s probation officer. During
the June 2017 financial evaluation, Sweet was asked to join the
meeting with Lazo because Oliphant had become agitated. When
Sweet arrived, Oliphant was objecting to Lazo’s requests for
certain financial information and documents. Sweet warned
Oliphant he needed to cooperate with the evaluator. In August
2017, Oliphant asked Sweet for permission to travel to New
Jersey because he was attempting to sell a piece of property he
owned so he could pay off the restitution. When Oliphant
returned from the trip, he did not indicate whether he had sold
the property. However, Oliphant did not pay the balance of the
restitution owed to Welsh and instead continued to make the
minimum monthly payment.
According to Sweet, whenever the restitution order failed to
specify a monthly amount, the probation department’s policy
was to set the minimum restitution payment at $25 per month
regardless of the defendant’s ability to pay. If the victim later
complained the monthly payment was too low, the department
typically would conduct an updated financial evaluation of
the defendant. Following the June 2017 evaluation conducted by
Lazo, Oliphant’s minimum monthly restitution payment was
increased to $150. Oliphant began paying this amount in July
2017 and did not miss any payments. Welsh, however, was still
not satisfied with the increased amount and complained to
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Sweet’s supervisor and the prosecutor assigned to the case.
Welsh then requested an ability-to-pay hearing.
At the hearing, Henderson testified as follows: She had
lived with Oliphant for the past eight years; they rented a
townhome together for $1,890 per month; and she and Oliphant
previously had split the rent and other living expenses evenly
between them. However, for the past year, Henderson had been
covering 90 percent of the couple’s expenses, including rent,
utilities, food, and clothing, because Oliphant had been unable to
work. According to Henderson, she was the primary driver of the
Jaguar and paid for the lease and insurance on the vehicle. The
lease was in Oliphant’s name because Henderson’s credit had
been tarnished in a contentious divorce. Henderson was self-
employed and worked as a fitness trainer, a group fitness
instructor, a loan consultant, and a loan signing agent. Her gross
income averaged between $5,000 and $6,000 per month. She
earned approximately $35,000 in 2016 and $40,000 in 2017. She
had no significant assets and was not involved in Oliphant’s
businesses.
The Trial Court Finds Oliphant Violated His Probation
and Increases His Monthly Restitution Payment
On August 31, 2018, at the conclusion of the ability-to-pay
hearing, the trial court found Oliphant had complied with his
obligation to pay victim restitution to Welsh because he had paid
the minimum monthly amount set by the probation department.
The court found, however, that Oliphant had violated the
conditions of his probation by failing to cooperate with the
department and to provide complete information during
the financial evaluation process. The court revoked and then
7
reinstated Oliphant’s probation for an additional two-year period
to August 20, 2020. The court also increased Oliphant’s
minimum monthly restitution payment from $150 to $1,000. In
setting that amount, the court advised Oliphant: “I’m going to
find that you have the ability to be gainfully employed and you
have ability to cut back on the expenses while you’re on
probation. Probation will terminate upon completion of the
payment of restitution in full. Cost of probation will be stayed
while you are paying restitution. The court is going to set that
amount starting on November the 1st. That will be $1000 a
month, which will give you plenty of time, either to collect assets
or to get yourself a real job, one in which there are plenty of
employment opportunities.” Following the hearing, Oliphant
timely appealed the court’s order.
DISCUSSION
On appeal, Oliphant challenges the portion of the trial
court’s August 31, 2018 order directing him to pay restitution at
an increased rate of $1,000 per month. Oliphant contends the
trial court abused its discretion in setting the amount of the
minimum monthly restitution payment because the evidence was
insufficient to support a finding he had the ability to pay the
increased amount.
Governing Law
Section 1202.4 provides, in relevant part, that “[i]t 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).) Subject to certain exceptions not
8
applicable here, “in 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.” (Id., subd. (f).) Restitution “shall be of 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 “payment for the
value of stolen or damaged property.” (Id., subd. (f)(3)(A).) “The
court may modify the amount [of restitution], on its own motion
or on the motion of the district attorney, the victim or victims,
or the defendant.” (Id., subd. (f)(1).)
Section 1202.4 further provides that “[i]n every case in
which the defendant is granted probation, the court shall make
the payment of restitution fines and orders imposed pursuant
to this section a condition of probation.” (§ 1202.4, subd. (m).)
Under section 1203.3, “[t]he 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.” (§
1203.3, subd. (a).) This includes the power to modify or extend
the term of probation based on the defendant’s failure to pay the
amount of restitution ordered within the original probationary
period. (People v. Cookson (1991) 54 Cal.3d 1091, 1095-1096
[where monthly payment set by the probation department
“had resulted in defendant’s inability to pay full restitution as
contemplated within the original period of probation,” the trial
court did not err in extending defendant’s probationary term to
ensure the full amount was paid].) As the Supreme Court has
explained, “[a]llowing modification of probation to facilitate the
9
recovery of restitution as originally contemplated by the court
enables the court to fashion a remedy that best serves the goals
of probation.” (Id. at p. 1097.)
We review a trial court’s restitution order for abuse of
discretion. (Luis M. v. Superior Court (2014) 59 Cal.4th 300, 305;
People v. Giordano (2007) 42 Cal.4th 644, 663.) Under the abuse
of discretion standard, the defendant must establish “the trial
court’s decision was so erroneous that it ‘“falls outside the bounds
of reason.”’” (People v. Miracle (2018) 6 Cal.5th 318, 346.) “We
broadly and liberally construe a victim’s right to restitution, and
will find no abuse of discretion so long as ‘“‘“there is a factual and
rational basis for the amount of restitution ordered.”’”’ [Citation.]
When determining whether such a basis exists, our ‘“‘“power . . .
begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted,” to support
the . . . court’s findings.’”’ [Citation.]” (People v. Grundfor (2019)
39 Cal.App.5th 22, 27; see People v. Riddles (2017) 9 Cal.App.5th
1248, 1252 [“‘“‘“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.”’”’”].)
The Trial Court Did Not Abuse Its Discretion in
Increasing Oliphant’s Monthly Restitution Payment
In this case, the trial court had a factual and rational basis
for increasing Oliphant’s minimum restitution payment to $1,000
per month. While Oliphant claims he lacked the ability to pay
the increased amount, the evidence demonstrated that, during
the original probationary period, Oliphant had sufficient funds to
make significant expenditures. For example, in December 2016,
Oliphant entered into a three-year lease for a 2017 Jaguar. At
10
that time, he made a $3,000 cash down payment on the lease. As
the leaseholder, Oliphant was thereafter responsible for paying
approximately $700 per month for the lease and $300 per month
for automobile insurance. The monthly expenditures on the
Jaguar alone were thus sufficient to cover the $1,000 restitution
payment.
Additionally, the evidence showed that, in May 2017,
Oliphant purchased a residence in Philadelphia. Although
Oliphant claimed the property was a gift from an unidentified
family member, the information Chavez obtained indicated the
property was purchased for $245,000, and Oliphant’s name was
on the deed. There was also evidence Oliphant owned other real
estate during the probationary period. Oliphant’s probation
officer recounted that, in August 2017, Oliphant requested
permission to travel to New Jersey because he was attempting
to sell a piece of property to pay off the balance of the restitution.
On appeal, Oliphant asserts that none of the evidence
affirmatively showed he had sufficient equity in any property to
encumber it. Oliphant, however, uniquely possessed such
information, and he was not forthcoming about it during the
financial evaluation process. Indeed, despite the evaluators’
requests, Oliphant failed to provide them with any documents
showing any assets or income. Based on the evidence that was
presented, the trial court reasonably could have inferred
Oliphant had access to financial resources he had not fully
disclosed.
The trial court also reasonably concluded Oliphant was
capable of finding employment to enable him to pay an increased
monthly amount in restitution. In his August 2018 interview
with Chavez, Oliphant claimed he was not working because he
11
had a felony conviction. As Chavez explained to him, however,
there were many individuals “who also have felonies but have
found jobs.” In his appellate brief, Oliphant asserts Chavez may
have been referring to “jobs as day laborers,” whereas he “is an
entrepreneur.” Oliphant’s desired profession, however, is
irrelevant to whether he has the ability to pay the monthly
restitution ordered by the court. There is nothing in the record to
suggest Oliphant was incapable of performing work, whether as a
manual laborer or other gainfully employed individual. (See
People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [trial court
properly found defendant had ability to pay restitution fine
despite lack of current employment because the “court was
entitled to infer defendant’s unemployment . . . arose from a
lifestyle choice”]; People v. Frye (1994) 21 Cal.App.4th 1483, 1487
[“in determining whether a defendant has the ability to pay a
restitution fine, the court is not limited to considering a
defendant’s present ability but may consider a defendant’s ability
to pay in the future”].)
In arguing the trial court abused its discretion in setting
the minimum monthly restitution payment, Oliphant primarily
relies on Henderson’s testimony that she was paying 90 percent
of the couple’s living expenses, including the lease payment on
the Jaguar and the insurance for it. However, it was the
exclusive province of the trial court to evaluate the credibility of
the witnesses and the weight to be accorded their testimony.
(People v. Beck and Cruz (2019) 8 Cal.5th 548, 627 [“‘“‘it is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends’”’”].) The trial court, accordingly,
was entitled to discredit Henderson’s testimony about the
12
couple’s allocation of expenses, and to infer Oliphant, rather than
Henderson, was paying for and driving the Jaguar. The court
also reasonably could have inferred from the totality of evidence
presented Oliphant had not been forthcoming about the financial
resources available to him, and he had access to sufficient funds
or employment opportunities to pay considerably more in
restitution each month.
Where, as here, “‘the circumstances reasonably justify the
trier of fact’s findings, reversal . . . is not warranted simply
because the circumstances might also reasonably be reconciled
with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.’”
(People v. Covarrubias (2016) 1 Cal.5th 838, 890.) Because there
was sufficient evidence to support the finding Oliphant had the
ability to pay $1,000 per month in victim restitution, the trial
court did not abuse its discretion in ordering Oliphant to pay the
increased amount.
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DISPOSITION
The trial court’s August 31, 2018 restitution order is
affirmed.
RICHARDSON, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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