Opinion
D069259
03-03-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID THOMAS WISE, Defendant and Appellant.
Bases & Bases and Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD235446) APPEAL from orders and a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Bases & Bases and Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette Cavalier and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
In late January 2013, a 76-count felony indictment was filed against David Thomas Wise (Wise) and his wife and codefendant, Christina Wise. The indictment charged Wise with the commission of the following 68 felonies against more than 20 victims: one count of conspiracy to commit grand theft (count 1: Pen. Code, § 182, subd. (a)(1)); 18 counts of presenting false information in an insurance claim (counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20-22, 24-25, 27, 29, 31 & 69: § 550, subd. (b)(1)); 25 counts of grand theft of personal property (counts 3, 5, 7, 9, 11, 13, 15, 17, 19, 23, 26, 28, 30, 32, 35, 37, 39, 41, 43, 45, 47, 49 & 51-53: § 487, subd. (a)); eight counts of issuing checks with nonsufficient funds (counts 34, 36, 38, 40, 42, 44, 46 & 50: § 476a, subd. (a)); one count of using false statements in the sale of a security (count 48: Corp. Code, § 25401); three counts of failure to file a tax return (counts 54, 56 & 58: Unemp. Ins. Code, § 2117.5); three counts of failure to pay taxes (counts 55, 57 & 59: Unemp. Ins. Code, § 2118.5); one count of filing a fraudulent tax return (count 60: Rev. & Tax. Code, § 19705, subd. (a)(1)); one count of failure to file a tax return (count 62: Rev. & Tax. Code, § 19706); and seven counts of making a false insurance claim (counts 70-76: § 550, subd. (a)(6)). As pertinent here, the indictment also charged Wise with two white-collar crime enhancements (§ 186.11, subd. (a)(1) & (2)).
Christina Wise is not a party to this appeal.
Because David Wise and Christina Wise share the same last name, in the interest of clarity we shall refer to Christina Wise as Christina.
All further statutory references are to the Penal Code unless otherwise specified.
Change of Plea Hearing
On October 9, 2014, Wise pleaded guilty to 12 of the 68 counts charged in the indictment: four counts of presenting false information in an insurance claim (counts 4, 12, 14 & 18), seven counts of grand theft of personal property (counts 32, 35, 37, 47, 49, 51 & 52), and one count of filing a fraudulent tax return (count 60). Wise also admitted one of the two white-collar crime enhancement allegations (specifically, the allegation under § 186.11, subd. (a)(2)).
In exchange for Wise's guilty plea and admission, the remaining charges and allegations were dismissed pursuant to a Harvey waiver; the parties stipulated that the transcript of the grand jury proceeding would serve as the factual basis for the plea and admission; Wise stipulated to "[i]nsurance billing" restitution to the medical insurance companies in the amount of $119,434.54; he agreed that "[a]ll other restitution" was "TBD" (to be determined); the trial court would strike the punishment for the admitted white-collar crime enhancement (§ 186.11, subd. (a)(2)); and the court would sentence Wise to a total term of seven years eight months in county jail with credits for time served.
"A Harvey waiver' permits a sentencing court to consider facts relating to unfiled or dismissed charges." (3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 337, p. 515; see People v. Harvey (1979) 25 Cal.3d 754, 758-759 (Harvey).)
Sentencing Hearing
At the sentencing hearing on November 6, 2014, the court struck the punishment for the white-collar crime enhancement and then sentenced Wise to an aggregate term of seven years eight months in local custody. The court imposed "partial restitution" to "the insurance carriers" for medical billing in the stipulated amount of $119,434.54, and reserved jurisdiction with respect to all other restitution claims.
Restitution Hearing and the Challenged Restitution Orders (Franchise Tax Board & Jupiter Investment Group)
At the contested restitution hearing held on August 7, 2015, which Wise had requested, the court found that Wise had waived his right to be present at the hearing, as Wise stated in a letter he had submitted to the court in addition to his brief on the restitution issues. As pertinent here, Wise claimed in his restitution brief that he owed no restitution to the Franchise Tax Board (FTB) because he was not criminally culpable. He also disputed the claim for restitution asserted by the Jupiter Investment Group (Jupiter), asserting that Jupiter's loss was only $5,072. After the parties made their respective arguments, the court took the matter under submission.
On August 18, 2015, the court issued its first of two sets of findings and orders. The court awarded (among other things) restitution to Jupiter in the amount of $7,219, as claimed by the People. In doing so, the court relied on the grand jury testimony of Jupiter's assistant controller, Elara Bowman.
On September 28, 2015, the court issued its second set of findings and orders. As pertinent here, the court awarded restitution to the FTB in the amount of $192,480 for unpaid taxes from 2008, 2009, and 2010. In doing so, the court rejected Wise's claim of factual innocence, and it relied on the grand jury testimony of Christopher Herrmann, a senior special agent with the FTB.
Wise's Contentions on Appeal
Wise contends the court's restitution orders must "be modified to delete restitution to victims of the dismissed counts." His principal assertion in support of this contention is that he "did not understand that acceptance of the Harvey waiver meant that the court could order restitution to victims of the dismissed charges." He also contends the court abused its discretion by "improperly calculating the restitution orders" requiring him to pay $192,480 to the FTB and $7,219 to Jupiter. (Capitalization omitted.) For reasons we shall explain, we affirm the restitution orders.
FACTUAL BACKGROUND
As noted, the parties stipulated that the evidence contained in the reporter's grand jury transcript would serve as the factual basis for Wise's guilty plea. Citing the eight-volume grand jury transcript, Wise has submitted a seven-page summary of the facts relating to the 12 felony counts to which he pleaded guilty in this case. The Attorney General's statement of the facts, which also cites the grand jury transcript, is nine pages in length. As most of the facts underlying those 12 counts are not relevant to the restitution issues presented in this appeal, we need not summarize them. To the extent the evidence presented during the grand jury proceedings is relevant to the issues presented in this appeal, it will be discussed in the discussion section of this opinion.
Wise is a law school graduate with degrees in management and business administration. When this case arose, he was not licensed to practice law, but he had worked in commercial real estate and he earned commissions from sales contracts he negotiated. Wise's wife and codefendant, Christina, a licensed psychologist, owned and operated San Diego Family Services (SDFS).
In 2007, Wise began helping Christina run and operate SDFS, including medical billing. Wise also operated his real estate and business ventures from the SDFS office. During a period of six years, he and Christina committed a series of grand thefts and fraud-related crimes, which resulted in multiple lawsuits and triggered the investigation in the instant case.
DISCUSSION
I. HARVEY WAIVER
Wise first claims the court's restitution orders must "be modified to delete restitution to victims of the dismissed counts." His principal assertion in support of this claim is that he "did not understand that acceptance of the Harvey waiver meant that the court could order restitution to victims of the dismissed charges." We conclude that Wise's attack on the validity of this Harvey waiver, which is an integral part of his negotiated guily plea, is, in substance, an attack on the validity of that plea; thus, his claim on appeal must be dismissed because, as the Attorney General points out and Wise acknowledges, he failed to obtain in the superior court a certificate of probable cause.
A. Background
The Harvey waiver that Wise initialed on his "PLEA OF GUILTY/NO CONTEST - FELONY" change of plea form informed him that the court, when "ordering restitution," could consider Wise's prior criminal history and the entire factual background of this case, including (among other things) "any . . . dismissed . . . charges." Specifically, Wise's Harvey waiver stated:
"The sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence." (Italics added.)
As shown by the change of plea form, Wise stipulated to "[i]nsurance billing" restitution to the medical insurance companies in the amount of $119,434.54, and he agreed that "[a]ll other restitution" was "TBD."
During the change of plea hearing, Wise pleaded guilty to 12 of the 68 counts charged in the indictment and admitted one of the white-collar crime enhancement allegations. In exchange for Wise's guilty plea and admission, the remaining charges and allegations were dismissed subject to the Harvey waiver.
Wise's wife, Christina, also pleaded guilty to 12 counts and admitted the white-collar crime enhancement allegation.
Before the court accepted Wise's plea, the court explained to Wise that it could consider the "facts of those dismissed counts" in "setting restitution." Specifically, alluding to Wise's Harvey waiver, the court told Wise:
"[T]he court may consider the facts of those dismissed counts for any purposes in this case other than amount of custody. The court may certainly consider them for purposes of setting restitution." (Italics added.)
The court also explained to Wise that, under the plea agreement, it could order him to pay restitution for losses incurred as a result of criminal conduct charged in the dismissed counts. Specifically, the court told Wise:
"In addition, restitution is required as a matter of law. The law says that persons who are convicted of [a] criminal offense must pay restitution for all losses that occur as a result of the criminal conduct. This includes dismissed counts." (Italics added.)
Shortly thereafter, after reviewing these and the other terms of the plea agreement, the court asked Wise, "Mr. Wise, have these terms been explained to you?" Wise replied, "Yes." The court then asked him, "Do you understand them?" Wise answered, "Yes." Shortly thereafter, referring to Wise's change of plea form, the court asked Wise, "Did you read and go over this form with [defense counsel]?" Wise responded, "I did." The court then asked Wise, "Did you put your initials in the boxes as you went over the form?" Wise replied, "I did." The court asked him again, "Did you understand everything he explained to you from the form?" Wise indicated that he understood, and he acknowledged that he signed the change of plea form.
B. Analysis
As noted, Wise claims the court's restitution orders must "be modified to delete restitution to victims of the dismissed counts." In support of this claim, he asserts that (1) he "did not understand that acceptance of the Harvey waiver meant that the court could order restitution to victims of the dismissed charges"; (2) "[t]he court did not clarify" that his acceptance of the Harvey waiver "meant [he] could be ordered to pay restitution to the victims of dismissed counts"; (3) "his acceptance of the [guilty] plea was not voluntary or intelligent regarding the extent of victim restitution"; and (4) thus, the court "had no discretion to order restitution for dismissed counts except as agreed to in the plea bargain." Wise's claim and supporting assertions are unavailing.
Section 1237.5 and California Rules of Court, rule 8.304(b) (formerly rule 31(d)) "allow an appeal from a judgment entered on a guilty plea only if (1) the defendant obtains a certificate of probable cause from the trial court or (2) the appeal falls within the two categories of grounds that do not require a certificate." (People v. Buttram (2003) 30 Cal.4th 773, 776.) "One 'noncertificate' category involves postplea claims, including sentencing issues, that do not attack the validity of the plea." (Ibid., italics added.) An appeal that "attacks an integral part of the plea" is, "in substance, a challenge to the validity of the plea" that requires compliance with the probable cause certificate requirements of section 1237.5. (People v. Panizzon (1996) 13 Cal.4th 68, 73.)
Section 1237.5 provides in full: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court." (Italics added.)
All further rule references are to the California Rules of Court. Rule 8.304(b)(4)(B) limits the scope of section 1237.5 by allowing, without a certificate of probable cause, an appeal from a guilty or nolo contendere plea that is based on "[g]rounds that arose after entry of the plea and do not affect the plea's validity." (Italics added.)
Here, Wise contends he did not need to obtain a certificate of probable cause before raising this claim on appeal because his appeal "is not challenging the validity" of his negotiated plea. However, he is challenging the validity of his Harvey waiver, which is an integral part of his plea. Although the record of the change of plea hearing (discussed, ante) shows otherwise, Wise asserts he "did not understand that acceptance of the Harvey waiver meant that the court could order restitution to victims of the dismissed charges." He also asserts "his acceptance of the plea was not voluntary or intelligent regarding the extent of victim restitution." By attacking an integral part of his guilty plea (the Harvey waiver), and by claiming his acceptance of the plea was not voluntary or intelligent because he did not understand that his acceptance of the Harvey waiver meant that the court could order restitution to victims of the dismissed charges, Wise is, in substance, challenging the validity of his guilty plea. (See Panizzon, supra, 13 Cal.4th at p. 78 ["by contesting the constitutionality of the very sentence he negotiated as part of the plea bargain, defendant is, in substance, attacking the validity of the plea"].) Thus, the probable cause certificate requirement of section 1237.5 applies. (See Panizzon, at p. 73; § 1237.5; rule 8.304(b)(4)(B).) Whether Wise is now claiming he was inadequately advised of the Harvey waiver's consequences, or that he was misled by the court's explanations, he was required to first obtain a certificate of probable cause. We conclude Wise's claim on appeal that the court's restitution orders should be "be modified to delete restitution to victims of the dismissed counts" must be dismissed because he failed to obtain a certificate of probable cause as required by section 1237.5.
II. WISE'S SPECIFIC CHALLENGES TO THE ORDERS REQUIRING HIM
TO PAY RESTITUTION TO THE FTB AND JUPITER
Wise also specifically challenges, on other grounds (discussed, post), two restitution orders requiring him to pay restitution to the FTB and Jupiter. Specifically, he claims the court abused its discretion in ordering him to (1) pay restitution to the FTB in the amount of $192,480 for unpaid taxes due on unreported unlawful gains, and (2) pay restitution to Jupiter in the amount of $7,219. These claims of error are unavailing.
A. Applicable Legal Principles
In People v. Sy (2014) 223 Cal.App.4th 44 (Sy), this court explained that "[t]he California Constitution gives crime victims a right to restitution and, consequently, requires a court to order a convicted wrongdoer to pay restitution in every case in which a crime victim suffers a loss." (Id. at p. 62, citing Cal. Const., art. I, § 28, subd. (b)(13)(B).) "To implement this requirement, section 1202.4, subdivision (f), generally provides that '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.' " (Sy, at p. 62.)
We also explained in Sy that "[a] victim includes '[a] corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.' " (Sy, supra, 223 Cal.App.4th at p. 62, quoting § 1202.4, subd. (k)(2), italics added.) "A direct victim is a victim against whom a defendant has committed a crime." (Sy, at pp. 62-63.)
"[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt." (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) Statements by victims of crimes about the value of their losses constitute prima facie evidence of the value of those losses for purposes of restitution. (People v. Prosser (2007) 157 Cal.App.4th 682, 690 (Prosser).) "Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 (Gemelli).)
"Section 1202.4 does not, by its terms, require any particular kind of proof." (Gemelli, supra, 161 Cal.App.4th at pp. 1542-1543.) "In considering restitution awards for economic losses, it has been held that 'a prima facie case for restitution is made by the People 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. Lehman (2016) 247 Cal.App.4th 795, 801 (Lehman).) The prosecution may present expert witness testimony to meet its initial burden of making a prima facie showing of the economic losses incurred as a result of the defendant's criminal acts. (People v. Santori (2015) 243 Cal.App.4th 122, 127 (Santori) [expert testimony of city's crime prevention officer was "sufficient to support the People's prima facie burden" and, thus, sufficient to support a restitution order for the cost of removing graffiti caused by defendant's acts of vandalism].)
"A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious." (Gemelli, supra, 161 Cal.App.4th at p. 1542.) "No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered." (Ibid.)
B. Analysis
1. FTB
We first address Wise's claim that the court abused its discretion in ordering him to pay restitution to the FTB in the amount of $192,480 for unpaid taxes due on unreported unlawful gains. Noting that he was separately ordered to pay restitution to the individual victims of those unlawful gains, Wise asserts the court "abused its discretion by ordering [him] to pay restitution twice for the same losses" and "for the same criminal conduct," thereby "creating an unlawful windfall for the [FTB]." (Capitalization omitted.) Without citation to any persuasive authority, Wise asserts that, "[i]f [he] returns the money to the victims, then that money can no longer be considered taxable income," and his "[p]aying taxes on that income would result in an unlawful windfall to the [FTB]."
Wise has failed to preserve for appellate review his claim that, for the reasons he states for the first time on appeal (discussed, ante), the court abused its discretion in ordering him to pay restitution to the FTB in the amount of $192,480. A defendant who fails to object in the trial court to a restitution award authorized by law may not raise the objection for the first time on appeal. (See Prosser, supra, 157 Cal.App.4th at p. 689 [defendant waived objection to a victim restitution order by failing to raise it in the trial court at the restitution hearing]; In re S.S. (1995) 37 Cal.App.4th 543, 548 (S.S.) [stating that, because the defendant failed to raise certain objections to a victim restitution order in the trial court, "[w]e see no reason to permit such objections to be raised for the first time on appeal"]; see also People v. Anderson (2010) 50 Cal.4th 19, 26 [" '[A] sentence is generally "unauthorized" where it could not lawfully be imposed under any circumstance in the particular case.' "].)
Here, as the court found, Wise waived his right to be present at the restitution hearing held on August 7, 2015; and he did not personally appear at that hearing. Wise's counsel did not object, either orally or in writing, to the People's FTB restitution request ($192,480) on the grounds Wise now asserts on appeal. Thus, we conclude Wise has forfeited his challenge to the FTB restitution order. (Prosser, supra, 157 Cal.App.4th at p. 689; S.S., supra, 37 Cal.App.4th at pp. 547-548.)
Defense counsel prepared Wise's restitution brief which, on the topic of "STATE INCOME TAX," stated: "[Wise] is denying criminal culpability as to this [$192,480] claim of restitution. However, since he has entered a plea of guilty to one of the charge[s] underlying this claim (Count 60), [People v. Baumann (1985) 176 Cal.App.3d 67] does not apply. Nonetheless, [Wise] asserts that because he is not criminally culpable, he should not have to pay restitution." As already discussed, Wise pleaded guilty to (among other felony offenses) one count of filing a fraudulent tax return (Rev. & Tax. Code, § 19705, subd. (a)(1)), as charged in count 60 of the indictment.
Even if we were to assume Wise preserved his challenge to the FTB restitution order for appellate review, his challenge would fail on the merits. Wise attempts to avoid the forfeiture rule by contending that (1) the FTB restitution award was "unauthorized by section 1202.4." Wise also contends that, if this court concludes the FTB restitution order was statutorily authorized and he forfeited his claim, "[his] counsel rendered ineffective assistance" by "failing to argue that the duplicative [FTB] restitution order was an abuse of discretion under section 1202.4."
Both of these contentions fail because the court did not exceed its statutory authority or abuse its discretion in ordering Wise to pay restitution to the FTB in the amount of $192,480. Contrary to Wise's assertions, the charges in the indictment and the court's two sets of restitution orders show he was not ordered to "pay restitution twice" for the "same losses" and for the "same criminal conduct," and thus his claim that the FTB received "an unlawful windfall" fails. (Capitalization omitted.) Specifically, both the FTB restitution order and the orders that Wise pay restitution to the various unlawful gains victims were based on different criminal acts—tax fraud (FTB) and grand theft (individual unlawful gains victims); and they involved separate victims—the FTB and the unlawful gains victims. For the years 2008, 2009, and 2010, Wise had a total unreported taxable income of $2,113,830, which included unlawful gains in the form of unpaid rent to P.B. and investment monies from J.R., G.B., M.F., and M.F. and P.F. As a result, Wise owed $192,480 in unpaid taxes to the FTB, which formed the basis of the challenged restitution order. The court also ordered Wise to pay restitution for the unlawful gains in the amount of $200,000 to P.B., $50,000 to J.R. $225,500 to G.B., and $37,500 to M.F. and P.F. These restitution orders were based on Wise's acts of grand theft, which are separate from the tax fraud offense he committed against the FTB. We conclude that, contrary to Wise's assertion, the FTB restitution order and the restitution orders requiring Wise to pay restitution to the unlawful gains victims were not based on the same losses or criminal conduct.
G.B., J.R., M.F. and P.F., and P.B. Effective January 1, 2017, rule 8.90(b) requires appellate courts to "consider referring to" certain individuals "by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only," in order to protect those individuals' privacy. The list of people to whom this rule applies includes victims of crimes. (Rule 8.90(b)(4).) After consideration, we have decided to refer to the unlawful gain victims by their initials.
Wise relies principally on People v. Hume (2011) 196 Cal.App.4th 990 as authority for his assertion that, "once [he] pays victim restitution to individuals, then he should not be ordered to pay restitution to the [FTB] for the tax liability based on the same losses from the same conduct because that would be paying twice for the same misconduct." Wise's reliance on Hume is misplaced because that case is inapposite. Hume held that payments an embezzlement victim received from the California State Bar's Client Security Fund as compensation for economic losses attributed to the defendant attorney's criminal conduct will not offset the defendant's victim restitution obligation. (Hume, at pp. 994, 999-1000.) Hume is factually and legally distinguishable.
For all of the foregoing reasons, Wise's claim that the court abused its discretion in ordering him to pay restitution to the FTB in the amount of $192,480 is unavailing. A rational and factual basis supports the restitution awarded to the FTB. (See Gemelli, supra, 161 Cal.App.4th at p. 1542.) The challenged restitution order was not duplicative, and it did not result in a windfall to the FTB.
2. Jupiter
Wise also claims the court abused its discretion in ordering him to pay restitution to Jupiter in the amount of $7,219, because "it was not established that Jupiter sustained all of those losses." (Capitalization omitted.) This claim is unavailing because substantial evidence supports the restitution award to Jupiter.
As discussed, the prosecution may present expert witness testimony to meet its initial burden of making a prima facie showing of the economic losses incurred as a result of the defendant's criminal acts. (Santori, supra, 243 Cal.App.4th at p. 127.)
Here, the August 18, 2015 restitution order shows the court rejected Wise's contention that Jupiter's loss was only $5,072, and awarded restitution to Jupiter in the amount of $7,219 based on the grand jury testimony of Bowman, Jupiter's assistant controller and human relations manager. Bowman testified that, as a result of Jupiter's business dealing with Wise and SDFS, the total economic loss suffered by Jupiter was "approxima[tely]" $7,219. Specifically, she testified that Jupiter suffered a loss of $3,300 in unpaid rent, $80 for a lost key, $839 in legal fees, "about $500" for necessary repairs, and a $3,000 loss for having to reduce the monthly rent to $1,000 in order to get a new tenant. Bowman also testified that Jupiter's $7,219 in losses did not include her "time and gas."
On appeal, Wise repeats his claim that "there is evidence of a total loss to Jupiter . . . of [only] $5,072."
The sum of the losses to which Bowman testified actually totaled $7,719, which exceeded by $500 the $7,219 in losses she opined Jupiter had incurred. Thus, it appears that in reaching the figure of $7,219, Bowman excluded, in addition to her time and gas, the estimated $500 she testified Jupiter "probably" paid "in repairs to fix up the site."
Acknowledging he stipulated that the grand jury testimony in this matter formed the factual basis of his plea, Wise suggests the prosecution could not properly rely on Bowman's grand jury testimony to meet its burden of making a prima facie showing of Jupiter's economic losses because Bowman did not testify at the restitution hearing. Specifically, he asserts "the stipulation does not extend to facts that must be proven at the restitution hearing"; and, "[a]t the restitution hearing, the prosecution still had to prove the amount of losses by a preponderance of the evidence."
We reject Wise's suggestion that no evidence supports the restitution award in favor of Jupiter because the evidence on which the court based that award—Bowman's testimony—was presented during the grand jury proceedings, rather than during the restitution hearing. "Section 1202.4 does not, by its terms, require any particular kind of proof." (Gemelli, supra, 161 Cal.App.4th at pp. 1542-1543.) In Lehman, supra, 247 Cal.App.4th at page 803, the Court of Appeal explained that "the prosecution [is] not required to present victim testimony or affidavits or expert declarations in connection with the restitution hearing." Furthermore, "section 1202.4 does not require any particular kind of proof to establish a victim's losses." (Ibid., citing Gemelli, at p. 1543.) Here, the prosecution provided notice to Wise prior to the restitution hearing, in its "Points and Authorities in Support of Restitution Request," that it was seeking $7,219 in restitution for Jupiter's economic losses. In his responsive "Restitution Brief," Wise asserted that "[t]here is a dispute over the calculation of loss in this claim," and that "restitution should be calculated at $5,072." In his brief, Wise repeatedly cited the grand jury testimony of other witnesses in challenging other restitution claims asserted by the prosecution. In so doing, Wise implicitly acknowledged the court could properly rely on the testimony of grand jury witnesses like Bowman in awarding restitution.
For all of the foregoing reasons, we conclude the court did not abuse its discretion in awarding restitution to Jupiter in the amount of $7,219.
DISPOSITION
The restitution orders and the judgment are affirmed.
NARES, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.