Opinion
H043638
11-17-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN BOONE, Defendant and Appellant.
ORDER MODYFYING OPINIONS
(BOTH THE SEALED—UNREDACTED AND THE PUBLIC—REDACTED VERSIONS OF OPINION) AND DENYING REHEARING (NO CHANGE IN JUDGMENT) THE COURT:
It is ordered that the opinions filed herein on November 17, 2017, be modified as follows. These same modifications apply to both the sealed—unredacted and the public—redacted versions of the opinion.
1. On page 21, after the second full paragraph, which begins with the phrase "The Attorney General contends" and ends with the phrase "this line item," insert the following as a new paragraph:
In a footnote, defendant argues against waiver or forfeiture. He contends his trial counsel was not required to object to preserve his challenge based on the sufficiency of the evidence. In the alternative,
he argues perfunctorily that his trial counsel was ineffective for failing to object.
2. On page 22, at the end of the first full paragraph, which begins with the phrase "Since defendant challenges" and ends with the phrase "on the merits," insert the following sentence as part of the same paragraph:
Because we conclude the issue has not been forfeited, we shall not address defendant's argument based on ineffective assistance of counsel.
There is no change in the judgment. Appellant's petition for rehearing is denied. Date: __________
3. On page 23, delete the subheading that states: "C. Ineffective Assistance of Counsel" and replace it with a subheading that states "C. Due Process."
4. Also on page 23, delete the second full paragraph, which begins with the phrase "In the alternative" and ends with the phrase "in a similar fashion," as well as footnote 7 on pages 23 and 24, which relates to that paragraph.
/s/_________
ELIA, Acting P.J.
/s/_________
PREMO, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1478234) PUBLIC—REDACTED VERSION OF OPINION Redacts material from sealed record. (Cal. Rules of Court, rules 8.45, 8.46(f)(1) and (f)(2).)
This case involves crimes against four victims. We granted the defendant's motion to file the probation officer's supplemental report under seal to protect one victim's confidential business information related to its finances and accounting. In accordance with California Rules of Court, rule 8.46(f)(1) and (f)(2), we have prepared both public (redacted) and sealed (unredacted) versions of this opinion. We hereby order the unredacted version of this opinion sealed.
Defendant John Winston Boone pleaded no contest to grand theft (Pen. Code, (§§ 484-487, subd. (a)), forgery of a bill due (§ 470, subd. (d)), three counts of use of personal identifying information without authorization (§ 530.5, subd. (a)), embezzlement (§§ 504, 487), and preparing false documentary evidence (§ 134). Defendant also admitted an excessive taking enhancement (§ 12022.6, subd. (a)(1)) and an aggravated white collar crime enhancement (§ 186.11, subds. (a)(1), (a)(3)). At sentencing, the court ordered victim restitution totaling [amount redacted] to defendant's two former employers.
Hereafter, all undesignated statutory references are to the Penal Code.
On appeal, defendant challenges two components of the victim restitution order, which directed him to pay one of his employers: (1) [amount redacted] in lost wages and profits based on the efforts of its employees, and (2) [amount redacted] in lost profits for a lost business opportunity. He contends there is insufficient evidence to support either order. In addition, as to the amount ordered for lost wages and profits, defendant argues the court improperly ordered him to pay restitution for salaried employees performing their regular work functions. He also contends that order violated his constitutional jury trial and due process rights. As for the amount ordered for the lost business opportunity, the Attorney General argues defendant waived his challenge to the sufficiency of the evidence to support the order by submitting on this issue in the trial court. As to that order, defendant also argues that his trial counsel was ineffective for not objecting on the grounds raised on appeal and that the order violated his due process rights.
We conclude, as to both components of the victim restitution order at issue, that the victim made a prima facie showing of its losses, which shifted the burden to defendant to disprove the amounts claimed. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).) We conclude the court did not abuse its discretion in its victim restitution order because defendant presented no evidence and therefore failed to meet his burden to disprove the victim's restitution claim. We also reject the Attorney General's waiver argument and defendant's other contentions. We will therefore affirm the victim restitution order.
FACTS AND PROCEDURAL HISTORY
The prosecution alleged defendant committed grand theft, forgery, embezzlement, and other crimes against four victims, all of which are business entities. Two of the victims are defendant's former employers. As we have noted, we granted defendant's request to file the probation officer's supplemental report under seal to protect one victim's confidential business information. To provide additional privacy protection to all victims, we shall not use their names in this opinion and will instead refer to them as Employer No. 1, Employer No. 2, Contractor No. 1, and Contractor No. 2. (Cal. Rules of Court, rule 8.90(b)(4), (10).) As defined below, we shall use similar status designations to refer to individuals involved in this case.
I. Offenses Involving Employer No. 1
From approximately January through July 2011, defendant worked for Employer No. 1 as its Cloud and Network Operations Manager. During that time, defendant contracted with Contractor No. 1 to provide information technology and cloud services to Employer No. 1. Contractor No. 1 issued 12 invoices for its services at a total cost of $16,487.77, which defendant paid with his credit card. Defendant created a shell company (Shell Company No. 1) using Contractor No. 1's name. He then presented 18 false invoices in Shell Company No. 1's name—with inflated charges for Contractor No. 1's work—to his employer. Defendant said he paid for the work with his credit card and requested reimbursement. Employer No. 1 reimbursed defendant the inflated amounts, which totaled $94,783.37.
II. Offenses Involving Employer No. 2
[Redacted.]
[Redacted.]
The relationship between Employer No. 2 and Related Company is not clear from the record.
[Redacted.]
[Redacted.]
III. Procedural History
The prosecution filed its original complaint in March 2014, almost two years after Employer No. 2 terminated defendant. The prosecution's amended complaint alleged one count of grand theft from Employer No. 1 (§§ 484-487, subd. (a), count 1); one count of forgery of a "due bill for payment of money" from Employer No. 1 (§ 470, subd. (d), count 2); three counts of using personal identifying information without authorization (§ 530.5, subd. (a)) based on defendant's use of Contractor No. 1's, Contractor No. 2's, and Employer No. 2's information (counts 3, 4, and 6); one count of embezzlement from Employer No. 2 (§§ 504, 487, count 5); and one count of preparing false documentary evidence after he was terminated by Employer No. 2 (§ 134, count 7). The complaint contained an enhancement allegation that counts 1 through 6 involved property worth more than $65,000 (§ 12022.6, subd. (a)(1)). The complaint also contained an aggravated white collar crime enhancement, which alleged that counts 1 through 5 involved a pattern of related felony conduct including fraud and embezzlement involving more than $100,000 (§ 186.11, subds. (a)(1), (a)(3)).
In September 2015, defendant was transferred from the federal prison in Atwater, California, where he was serving a sentence in an unrelated matter, to the Santa Clara County Jail to face the charges in this case. In March 2016, before the court conducted a preliminary hearing, the parties entered into a negotiated disposition of this case. Under the agreement, defendant agreed to plead no contest to all counts in exchange for a "non-binding, tentative indicated sentence" of 16 months "top/bottom" concurrent to any other sentence in federal or state court. Defendant pleaded no contest to all seven counts and admitted both enhancements.
Defendant pleaded guilty in federal district court to two counts of wire fraud (18 U.S.C. § 1343) in an unrelated action and was sentenced to ten years in federal prison. (United States v. Boone (9th Cir. Jan. 10, 2017, N0. 15-50017) 2017 WL 83494, *1.) In addition to his prison sentence, the federal district court ordered defendant to pay $1,219,138 in victim restitution in that case. (D.O.J. News Release (Jan. 13, 2015) 2015 WL 12915502 (D.O.J.).)
The court subsequently sentenced defendant to 16 months (the lower term) on count 1 and imposed a 16-month concurrent sentence on each of the remaining counts. The court struck the one-year punishment on each of the enhancements pursuant to section 1385 and imposed fines and fees that are not at issue on appeal. With custody credits, defendant had less than a week left to serve on his sentence in this case. At defendant's request, the court ordered his transport back to federal prison stayed to May 30, 2016.
IV. Victim Restitution
Prior to sentencing, the probation department reported on the victims' losses and restitution claims. Contractor No. 1 reported that it had not suffered any financial loss. The probation officer was unable to locate Contractor No. 2 and was therefore unable to confirm whether it had suffered any loss.
Employer No. 1 requested $78,295.60 in victim restitution—the difference between the amount defendant claimed for Contractor No. 1's work ($94,783.37) and the actual cost of the work ($16,487.77). It also provided documentary evidence supporting its claim.
[Redacted.]
At sentencing, defense counsel told the court defendant was "prepared to submit to the restitution order . . . of $78,295.60" to Employer No. 1 and to the "roughly [amount redacted] amount labeled actual amount embezzled" to Employer No. 2. The latter amount included the [amount redacted] lost profits from the "[Related Company] Acquisition." Defense counsel noted that under section 1202.4, subdivision (f)(3)(G), the court has the discretion to order interest from the date of the loss or the date of sentencing and asked the court to order interest from the date of sentencing in light of defendant's request to be transferred from federal prison to face the charges in this case and the early resolution of the case. The prosecution argued that interest should be imposed from the dates of the losses since the losses occurred "so long ago" (in 2012) and defendant was out of custody for many years before he was arrested in the federal case.
Defense counsel also challenged Employer No. 2's claim for lost wages and profits, arguing that there was an insufficient connection between defendant's conduct and the claim because the four employees identified in the claim were all salaried employees and that Employer No. 2 would have paid them the amounts claimed regardless of defendant's conduct. Defense counsel argued, "These costs are not but for costs—there is some suggestion that perhaps their energy could have been directed to other tasks if [defendant] had not committed the offenses charged." The prosecutor said she had spoken with Employer No. 2's counsel, who confirmed that the four employees identified in the claim were all salaried employees. She added, "They would have made this money anyways. However, they took the hourly time that they spent dealing with [defendant's] crimes, and they determined that was the loss as far as lost profits, essentially, that they could have been doing something else, making money, instead of having to deal with [defendant], what he did to their company."
The court ordered $78,295.60 (the amount requested) in victim restitution to Employer No. 1. As for Employer No. 2, the court ordered the full [amount redacted] claimed for actual amounts embezzled, which included [amount redacted] for the "[Related Company] Acquisition." The court also ordered defendant to pay Employer No. 2 [amount redacted] in lost wages and profits. The court denied Employer No. 2's interest claim and ordered that interest would accrue from the date of sentencing at 10 percent per annum.
DISCUSSION
Defendant challenges two components of the court's restitution order to Employer No. 2: the [amount redacted] ordered for "[Related Company] Acquisition" (part of the "actual amount embezzled") and the [amount redacted] ordered for lost wages and profits.
I. General Principles Governing Victim Restitution
"In 1982, California voters passed Proposition 8, also known as The Victims' Bill of Rights. . . . Proposition 8 established the right of crime victims to receive restitution directly 'from the persons convicted of the crimes for losses they suffer.' " (People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano); see also People v. Stanley (2012) 54 Cal.4th 734, 736 (Stanley).) Proposition 8 added article I, section 28 to the California Constitution. That section was amended by initiative measure in 2008, and currently provides in subdivision (b)(13): "(A) It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] (B) Restitution shall be ordered from the convicted wrongdoer in every case, . . . in which a crime victim suffers a loss." (Cal. Const., art. I, § 28, subds. (b)(13)(A), (B).)
California Constitution, article I, section 28, subdivision (b), directed the Legislature to adopt implementing legislation. (Giordano, supra, 42 Cal.4th at p. 652.) "In 1983, the Legislature enacted . . . section 1202.4, which requires a full victim restitution order in criminal cases for every determined economic loss unless there are compelling and extraordinary reasons not to do so." (Luis M. v. Superior Court (2014) 59 Cal.4th 300, 304 (Luis M.); § 1202.4, subd. (f); see also § 1202.4, subd. (a)(1).) The court "shall require" the defendant to make restitution to the victim "based on the amount of loss claimed by the victim . . . or any other showing to the court." (§ 1202.4, subd. (f).)
"To the extent possible, the restitution order . . . 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, but not limited to," 12 categories of economic losses described in section 1202.4, subdivision (f)(3). (§ 1202.4, subd. (f)(3); Stanley, supra, 54 Cal.4th at p. 737.) Three of the 12 categories listed in the statute are relevant here. The first provides that victim restitution shall include "[f]ull or partial payment for the value of stolen or damaged property," defined as "the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (§ 1202.4, subd. (f)(3)(A).) The second provides for recovery of "[w]ages or profits lost due to injury incurred by the victim . . . ." (§ 1202.4, subd. (f)(3)(D).) The third provides for recovery of "[w]ages or profits lost by the victim . . . due to time spent as a witness or in assisting the police or prosecution." (§ 1202.4, subd. (f)(3)(E).)
II. Restitution Hearings
A defendant is entitled to a hearing to "dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) Although a restitution hearing is usually held at the time of sentencing (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319), the court may also conduct a separate restitution hearing after sentencing (see e.g., People v. Chappelone (2010) 183 Cal.App.4th 1159, 1167-1171 (Chappelone)). " ' [T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]' [Citation]." (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045 (Keichler).)
The victim has the burden of presenting "an adequate factual basis for the claim." (Giordano, supra, 42 Cal.4th at p. 664.) At a restitution hearing, a prima facie case for restitution is made by the prosecution "based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss." (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) "Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner's statement made in the probation report about the value of stolen or damaged property." (People v. Gemelli, supra, 161 Cal.App.4th at pp. 1542-1543 (Gemelli).) " 'This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.' " (Keichler, supra, 129 Cal.App.4th at p. 1048; see also People v. Weatherton (2015) 238 Cal.App.4th 676, 684 (Weatherton) [reciting same rules]; People v. Lockwood (2013) 214 Cal.App.4th 91, 96 [same]; In re S.S. (1995) 37 Cal.App.4th 543, 545-548 & 547, fn. 2 (S.S.) [victim's letter to probation officer itemizing loss was sufficient prima facie showing; "[n]one of the cases hold that the victim must supply a sworn proof of loss or detailed documentation of costs and expenses"]; Gemelli, at p. 1543 [rejecting contrary authority to the extent that it "might be read to require more than a victim's statement of loss and a probation officer's recommendation as prima facie evidence of value"].)
Once the prosecution has made a prima facie showing of the victim's loss, the burden shifts to the defendant to disprove the amount of the loss claimed by the victim and " 'to demonstrate that the amount of the loss is other than that claimed by the victim.' " (Millard, supra, 175 Cal.App.4th at p. 26; Gemelli, supra, 161 Cal.App.4th at p. 1543; see also People v. Jessee (2013) 222 Cal.App.4th 501, 507; see Giordano, supra, 42 Cal.4th at pp. 666-667.) To meet this burden, the defendant may submit evidence to prove the amount claimed is excessive. (Ibid.)
" 'Since a defendant will learn of the amount of restitution recommended when he [or she] reviews the probation report prior to sentencing, the defendant bears the burden at the hearing of proving that amount exceeds' " the amount of the victim's loss. (S.S., supra, 37 Cal.App.4th at p. 546.) "[W]here the items, amounts, and sources are adequately identified in or with the probation report, the defendant has the burden of refuting them." (Ibid.) "Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion." (Keichler, supra, 129 Cal.App.4th at p. 1048.)
A restitution order is intended to compensate the victim for his or her actual loss; it is not intended to provide the victim with a windfall. (Millard, supra, 175 Cal.App.4th at p. 28.)
III. Standard of Review
Victim restitution awards are vested in the trial court's discretion and will be disturbed on appeal only when the appellant has shown an abuse of discretion. (Giordano, supra, 42 Cal.4th 644, 663.) "The abuse of discretion standard is 'deferential,' but it 'is not empty.' [Citation.] '[I]t asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.]" (Id. at pp. 663.) As this court has stated, no court has discretion to award restitution "not authorized by law, or to find facts for which there is not substantial evidence." (In re K.F. (2009) 173 Cal.App.4th 655, 661 (K.F.).) "Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the . . . victim's economic loss." (Giordano, at pp. 663-664.) "[A] trial court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review." (Id. at p. 664.) To facilitate appellate review of its restitution order, "the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how the method justifies the amount ordered." (Ibid.) "No abuse of that discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result. Factors relevant to that determination will necessarily depend on the particular circumstances before the court." (Id. at p. 665.)
"While the court need not order restitution in the precise amount of loss, it 'must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' " (Chappelone, supra, 183 Cal.App.4th at p. 1172, citing People v. Thygesen (1999) 69 Cal.App.4th 988, 992 (Thygesen) and other cases.) "[M]ethodological imprecision" does not amount to an abuse of discretion. (Giordano, supra, 42 Cal.4th at p. 666.)
IV. Restitution Order for Lost Wages and Profits
Defendant contends the trial court abused its discretion when it ordered [amount redacted] in victim restitution to Employer No. 2 for lost wages and profits. He asserts this claim was based on amounts paid to salaried employees who were performing their regular functions and argues there was no evidence that the "allegedly extraneous work . . . was anything more than the normal duties" of the employees involved. Defendant argues that requiring him "to pay the regular salaries of [the] employees for their normal duties may have resulted in a windfall" to Employer No. 2. Defendant also challenges the sufficiency of the evidence to support the court's order awarding lost wages and profits.
A. Background
[Redacted.]
Since the employee's names are in the sealed portion of the record, we refer to them by their job titles.
[Redacted.]
Someone researched and obtained the articles of incorporation for Shell Company No. 2, gathered the e-mails and other documents, developed the timeline, and prepared the spreadsheet and the supporting documentation for presentation to the court. Thus, the record supports the conclusion that Employer No. 2 spent a considerable amount of time responding to defendant's criminal conduct.
B. Restitution for Amounts Paid to Salaried Employees was Proper
Employer No. 2 claimed lost wages and profits under two separate provisions of section 1202.4, which authorized the recovery of "wages and profits lost" both "due to injury incurred by the victim" (§ 1202,4, subd. (f)(3)(D)) and "due to time spent as a witness or in assisting the police or prosecution" (§ 1202,4, subd. (f)(3)(E)). As our description of the tasks documented in Employer No. 2's evidence suggests, the company devoted a significant amount of time to investigating and documenting the nature and extent of defendant's crimes, thereby assisting the police and prosecution. Although the employees involved were all salaried employees, these efforts diverted them from the usual tasks associated with running the business and deprived Employer No. 2 of the work product these salaried employees would have generated if they had not been obliged to deal with defendant's crimes. (See e.g. In re Johnny M. (2002) 100 Cal.App.4th 1128, 1134 (Johnny M.).)
A restitution order may "properly include the reasonable value of employee work product lost as a result of the criminal conduct of another . . . ." (Johnny M., supra, 100 Cal.App.4th at p. 1134.) The minor in Johnny M., a Welfare and Institutions Code section 602 proceeding, admitted he burglarized a school and damaged school property. The restitution order in that case included an award to the school district based on the cost of having both salaried and hourly employees "make the affected classrooms operational." (Id. at pp. 1130-1131, and fn. 2.) The appellate court in Johnny M. rejected the minor's assertion that the school district did not incur any loss related to clean up work done by its salaried employees. (Id. at p. 1134.) The court found no abuse of discretion where the evidence "established that various salaried employees were required to spend time making classrooms operational after the break-ins. This caused the district an economic loss to the extent it deprived the district of the work product these salaried employees would have generated if they had not been obliged to clean up the mess made by minor." (Ibid.) The court also held "[t]he juvenile court reasonably valued the lost work product at the salary rate of the district employees, including benefits, for the lost time." (Ibid.; see also Luis M., supra, 59 Cal.4th at p. 309 ["[p]reexisting expenditures, such as salaried employees" may be included in a restitution award "provided those costs can be fairly apportioned on a pro rata basis to the [defendant's] conduct"]. )
Defendant argues this case is distinguishable from Johnny M. and that Employer No. 2 "sustained no apparent loss when employees responsible for accounting and finance reviewed [his] expense reports and found inconsistencies—a task that would normally be conducted by" those employees. We disagree.
First, the statutes and case law authorize recovery of lost wages and profits based on the work of salaried employees. Second, this case involved more than reviewing and finding inconsistencies in defendant's use of his company credit card and other accounts. There was also the website development scam, which defendant used to defraud his employer out of [amount redacted], and which the employer claimed resulted in the loss of its business relationship with Related Company. Third, Employer No. 2 discussed the use of the company credit card and accounts to pay for personal expenses with defendant after his first month of employment. Defendant acknowledged the activity, promised to provide receipts and reimburse his employer, then strung the company along for months. He continued to abuse his company credit card and accounts after management brought the conduct to his attention and the matter was still unresolved when the company terminated him six months later. What occurred here was outside the normal tasks associated with monitoring expense reports and company credit accounts, required work by multiple employees, and deprived Employer No. 2 of the work product those employees otherwise would have produced.
For these reasons, we reject defendant's assertion that Employer No. 2 was not entitled to restitution for lost wages and profits because its employees were salaried and would have done this work anyway.
C. Substantial Evidence Supports the Restitution Order for Lost Wages and Profits
Defendant argues that unlike the school district in Johnny M., Employer No. 2 did not submit an itemized list detailing the number of hours worked by its employees to remedy the effects of his crimes or provide information regarding the hourly rate of pay for any of its employees. He contends Employer No. 2's submission "shed no light on the hours worked by its employees." Although the school district made such a showing in Johnny M., nothing in that case requires such evidence in every case. As we have stated, section 1202.4 does not require any particular kind of proof. The "trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner's statement made in the probation report about the value of" its losses. (Gemelli, supra, 161 Cal.App.4th at pp. 1542-1543.)
In our view, Employer No. 2 met its prima facie burden in presenting its restitution claim for lost wages and profits when it listed the names of the [redacted] employees and the dollar amounts attributable to each employee's efforts on its spreadsheet; provided the timeline and supporting documentation describing the tasks its staff engaged in to investigate and document its claim; and referenced documents attached to the police report (which was available to all parties). Two of the employees named on the spreadsheet were key members of the company's management team (President and V.P. of Finance), which explains in part the amounts claimed for the loss of their work product. This was sufficient to shift the burden to defendant to prove that the amounts claimed were excessive or otherwise refute the claim.
"If defendant believed supporting documentation or additional information was necessary to effectively rebut the amount claimed, it was up to [him] to obtain it." (Gemelli, supra, 161 Cal.App.4th at p. 1545.) In S.S., in response to the defendant's contention that "he was entitled to more information concerning the precise nature of the items claimed," the court stated, "there is no basis for a conclusion that he lacked the information sought, or could not by reasonable efforts obtain it. . . . If further details were needed, [the defendant] could attempt to procure them, either by contacting the victim or by requesting that the probation officer do so. Having done none of these things, [the defendant] cannot complain about the lack of detail in the statement." (S.S., supra, 37 Cal.App.4th at p. 548.) Defendant could have subpoenaed President or all of the employees named on the spreadsheet to testify at the restitution hearing and questioned them about their salaries, the amount of time they or their staff spent dealing with defendant's crimes, and other aspects of the lost wages and profits claim he now challenges on appeal. Defendant could have requested a continuance or a separate hearing on victim restitution, which would have given him additional time to marshal evidence challenging this claim. Defendant presented no evidence, and he did not request a further hearing on restitution. The victim presented uncontested documentary evidence and the trial court was entitled to rely on that evidence. Since defendant failed to meet his evidentiary burden to refute the victim's showing, we reject his contention that the court abused its discretion when it awarded the amount claimed as lost profits and wages. (Keichler, supra, 129 Cal.App.4th at p. 1048; Weatherton, supra, 238 Cal.App.4th at p. 684.)
Defendant argues ordering restitution for lost wages and profits "may have resulted in a windfall" to Employer No. 2. Indeed, while restitution is intended to compensate the victim for actual losses, it is not intended to provide the victim with a windfall. (Millard, supra, 175 Cal.App.4th at p. 28; Chappelone, supra, 183 Cal.App.4th at p. 1172.) Defendant does not develop this point further or explain how the court's award of lost wages and profits resulted in a windfall to Employer No. 2. Our review of the record does not reveal any way in which the order for lost wages and profits has resulted in a windfall to Employer No. 2. (See e.g., Chappelone, supra, 183 Cal.App.4th at pp. 1173-1182 [trial court awarded victim retailer a windfall when it ordered restitution based on full retail price of damaged goods, when it based award on retail price instead of wholesale price, and when it allowed retailer to keep the recovered merchandise].) We therefore reject this argument.
D. Due Process and Jury Trial Rights
Defendant argues that since there is no evidence the [amount redacted] was anything more than wages the [redacted] salaried employees would have earned regardless of his actions or that the order was reasonably related to his crimes, the restitution order violated his rights to a jury trial and due process under both the United States and California Constitutions.
Victim restitution under section 1202.4 is not increased punishment for a crime. (Millard, supra, 175 Cal.App.4th at p. 35; Chappelone, supra, 183 Cal.App.4th at p. 1184 [collecting numerous federal cases so holding]; see also People v. Pangan (2013) 213 Cal.App.4th 574, 584-585 (Pangan).) Because section 1202.4 "requires the court to award the victim full restitution, the court's determination of that amount in a restitution hearing by a preponderance of the evidence does not involve a defendant's Sixth Amendment right to a jury or proof beyond a reasonable doubt." (Millard, at p. 36; Pangan, at pp. 584-586 [no right to jury trial at hearing on victim restitution].)
A "trial court violates the defendant's due process rights at a hearing to determine the amount of [victim] restitution if the hearing procedures are fundamentally unfair." (People v. Cain (2000) 82 Cal.App.4th 81, 87 (Cain).) When the defendant has a full and fair opportunity to present evidence challenging the victim's restitution claim, as was the case here, there is no due process violation. (Id. at pp. 87-88.) Defendant's contention that the restitution order violated his constitutional rights is meritless.
V. Restitution Order for the Related Company Acquisition
Defendant argues there is insufficient evidence to support the trial court's restitution order for the "[Related Company] Acquisition."
A. Forfeiture
The Attorney General contends defendant has waived this claim by failing to challenge this line item in the trial court. At sentencing, defense counsel told the court defendant was "prepared to submit to the . . . amount labeled actual amount embezzled," which included this line item.
Where the defendant's trial counsel "conceded" the victim's entitlement to a particular item in a restitution claim and "consented to the amount" claimed, the defendant has expressly waived any objection to it on appeal. (Chappelone, supra, 183 Cal.App.4th at p. 1182.) Defendant does not dispute that his trial counsel "failed to object" to this order. But he does not state that his counsel conceded the loss or consented to the amount of the claim. Counsel's use of the term "submit" is arguably ambiguous. Does it mean defendant agreed to the amount claimed or that he submitted the issue to the court for decision?
Citing People v. Butler (2003) 31 Cal.4th 1119, 1128 (Butler), defendant argues that "questions of the sufficiency of the evidence are not subject to forfeiture." The Butler court stated, " 'Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception.' " (Butler, at p. 1126.) Defendant also relies on our decision in K.F., supra, 173 Cal.App.4th at page 660, where we explained, "Sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal."
Since defendant challenges the sufficiency of the evidence to support the trial court's restitution order for the [amount redacted] and it is not clear he conceded the victim's entitlement to this line item or consented to the amount, we conclude this issue has not been forfeited and will address it on the merits.
B. Sufficiency of the Evidence
As for the sufficiency of the evidence to support this claim, defendant argues the record does not explain what Employer No. 2 meant by this line item. He asserts the reference appears only once in Employer No. 2's spreadsheet and that the claim was based on nothing more than Employer No. 2's statement.
Contrary to defendant's assertion, the record contains other evidence relative to this line item.
[Redacted.]
This evidence supports the conclusion that Employer No. 2 made an investment in developing a business relationship with Related Company that did not work out because of defendant's conduct. A reasonable inference from this evidence is that Employer No. 2 concluded it suffered a [amount redacted] loss as a result of defendant's scam involving website development for Related Company.
In our view, this was sufficient evidence to meet Employer No. 2's prima facie burden and shift the burden of proof to defendant to show that the amount claimed was excessive or unrelated to his criminal conduct. Defendant did not present any evidence related to this line item. Instead he "submitted" on the claim for actual amounts embezzled, which included this line item. Accordingly, we have not been persuaded that the trial court abused its discretion when it ordered [amount redacted] in restitution for "[Related Company] Acquisition."
C. Ineffective Assistance of Counsel
In the alternative, defendant argues in a footnote that his trial counsel "rendered ineffective assistance in not objecting to the [amount redacted] restitution claim on the grounds" raised on appeal. This one-line argument is followed by a string cite to four cases, including Pangan. Defendant does not develop this claim further. He does not explain how counsel's performance was deficient, how the conduct prejudiced him, or address tactical reasons for counsel's conduct. (See e.g., Pangan, supra, 213 Cal.App.4th at pp. 582-584 [analyzing ineffective assistance of counsel claim based on counsel's performance at restitution hearing].) A bald, one-line assertion in a footnote is hardly adequate to raise an ineffective assistance of counsel claim on appeal. We hold defendant has forfeited this clam by failing to brief it adequately, and we will not consider it further. (People v. Williams (1997) 16 Cal.4th 153, 206 [claim asserted in single sentence is perfunctory and need not be considered]; People v. Jones (1998) 17 Cal.4th 279, 304 [defendant "presents this claim perfunctorily and without supporting argument, and we reject it in a similar fashion"].)
Defendant attempts to flush out his ineffective assistance of counsel claim in his reply. There, he argues that "failure to object to a restitution award that is too high constitutes ineffective assistance of counsel" and "[h]ad trial counsel challenged the restitution award based on this insufficiency, there is far more than a reasonable probability that the court would have reduced the award." This cursory treatment of the question raised for the time in the reply brief does not aid defendant. "An appellant cannot salvage a forfeited argument by belatedly addressing the argument in its reply brief." (SCI California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 573, fn. 18.) --------
Finally, defendant argues the restitution order for lost profits from the Related Company acquisition violated his due process rights because it was based in insubstantial evidence. As with the amount ordered for lost wages and profits, since defendant had a full and fair opportunity to present evidence challenging this component of the restitution claim, there was no due process violation. (Cain, supra, 82 Cal.App.4th at pp. 86-88.)
DISPOSITION
The trial court's May 24, 2016 restitution order is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.