P. v. Bermudez
Filed 5/24/13 P. v. Bermudez CA1/4
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
>
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER BERMUDEZ, Defendant and Appellant. | A135693 (San Francisco County Super. Ct. Nos. 10022384, 10004772) |
Alexander
Bermudez challenges the amount of restitution awarded to a victim who lost his
home as a result of Bermudez’s criminal conduct. He contends that the trial court abused its
discretion in calculating restitution based on an appraised value of the home
at the time of the crime. We disagree
and affirm the restitution order.
I.
BACKGROUND
A. The Criminal Charges and Disposition
Bermudez
was charged in two separate cases with multiple counts of committing a
financial crime against elder or dependent adults (Pen. Code, § 368, subd.
(d))
(§ 487(a)). He negotiated a
guilty to two counts of grand theft, and the remaining charges were
dismissed. The trial court suspended
imposition of the sentence and placed Bermudez on probation for five years. As a condition of probation, the court
ordered Bermudez to serve 364 days in jail, which he had already completed at
the time of the court’s order.
The
trial court also awarded restitution to Bermudez’s victims. Although Bermudez did not dispute the amount
of restitution sought for three of his four victims, he challenged the amount
sought for his fourth victim, Thomas R.
He argued that it was improper for the court to calculate the amount of
Thomas R.’s restitution by using an appraised value of the home Thomas R. lost
through foreclosure rather than by using the amount of the mortgages Bermudez
induced Thomas R. to assume.
B. Victim Thomas R.
Thomas
R. was 59 or 60 years old when he was victimized by Bermudez. According to an evaluating
has “borderline intellectual functioning,†which means that he has a
below-average IQ but functions higher than if he were “mentally retarded.â€
Thomas
R. lived in a house in Daly City given to him by his father. The house was mortgage free. Thomas R. paid for his living expenses by
working as a singer and photographer.
Sometime
in the spring of 2006, Bermudez met Thomas R. by chance at a barbershop. After overhearing Thomas R. mention a desire
for a remodeling loan, Bermudez introduced himself and said he was in the real
estate business. Thomas R. told Bermudez
he wanted $10,000 to $15,000 to remodel his kitchen. On Bermudez’s invitation, Thomas R. later met
Bermudez at his office. At the office,
Bermudez proposed a loan substantially higher than $10,000 to $15,000. Bermudez further suggested that they go into
business together in real estate ventures and a limousine service.
So
began a series of loans eventually totaling $550,000 that largely benefited
Bermudez but were secured by Thomas R.’s house.
The first loan was a bank loan in July 2006 for $200,000 (the first
loan). The application in connection
with that loan stated that the property was worth $700,000. An appraisal prepared shortly after the loan
closed valued the property at $650,000.
In November 2006, the bank increased its loan by an additional $150,000
(the second loan). And a few months
later, Bermudez arranged a third loan for $200,000 from a private investor (the
third loan). According to the mortgage
broker for the third loan, the value of the property at the time of this loan
was $750,000 even though a contemporaneous appraisal reflected a higher value.
Bermudez,
or people associated with him, received at least half of the proceeds from the
first two loans directly from the escrow accounts when the loans closed. The remaining funds went into a bank account
in Thomas R.’s name. This account,
however, was steadily drained in $5,000 to $10,000 increments. According to Thomas R., Bermudez would take
Thomas R. to the bank, where he would withdraw money in person and hand it over
to Bermudez.
Thomas
R. acknowledged that he received and spent some of the money from the
loans. After the first loan closed, he used
some money to remodel his kitchen and to buy a television. He also withdrew smaller sums (up to $300 at
a time) from an ATM for living expenses.
By
the time of the third loan, Thomas R. had signed a grant deed making Bermudez a
co-owner of the house. When the net
proceeds of the third loan ($189,582.97) were disbursed, the entire amount went
directly to Bermudez who used the money to pay off other loans, make payments
toward various automobiles, and pay other expenses for himself and his family
members.
After
the three loans were finalized, Bermudez took Thomas R. to an attorney who
prepared an agreement at Bermudez’s direction.
The agreement, dated March 28, 2007, summarized the loans, identified
money that supposedly went to Thomas R., and made Bermudez responsible for
repaying the loans. The agreement
further provided that Thomas R. was transferring a 50 percent joint tenancy
interest in the property to Bermudez.
Thomas R. signed the agreement.
Bermudez
failed to pay off the loans, and the holder of the mortgage on the first and
second loans foreclosed on the property.
The property was sold in November 2009 for $470,000. The private investor who made the third loan lost
his principal.
Before
the foreclosure, Bermudez put Thomas R. out on the street. Bermudez went to Thomas R.’s home one day and
told him that he had to move out so the property could be rented. Thomas R. gathered some clothes and his
toothbrush, and Bermudez took him to a motel for the night. The next day, Thomas R. returned to his home
and found the locks had been changed. A
woman answered the door, said she was renting the home, and told Thomas R. to
leave. For a time, Thomas R. slept on
the street a few blocks from Bermudez’s office.
Ultimately, Thomas R. lost everything he owned, including his dog. He was homeless for over two years.
C. The Restitution Order
At
the restitution hearing, Bermudez
argued that the starting point for calculating Thomas R.’s restitution should
be the total amount of the loans ($550,000).
From this starting point, he urged the court to reduce the award first
by $185,260 or more because Thomas R. “acknowledged receiving†this amount in
the March 2007 agreement. He then urged
a further reduction of $95,529, which he claimed reflected the total amount
withdrawn from Thomas R.’s bank account in the three months after the first
loan. Bermudez also suggested that
Thomas R. gave other people access to his bank account, and they may have
withdrawn money from it.
The
trial court declined to accept Bermudez’s calculation and argument. It awarded Thomas R. $650,000 in restitution
after the district attorney pointed out that Bermudez’s criminal conduct left
Thomas R. homeless and that the appraised value of the house in July 2006 was
$650,000.
II.
DISCUSSION
With
these facts and procedural history in mind, we turn to the law governing
restitution. Our starting point is the
applicable standard of review. A trial court’s restitution order is reviewed
for abuse of discretion. (
42 Cal.4th 644, 663.) The trial
court’s discretion in calculating restitution is broad, but the method it
employs must be rationally designed to determine the victim’s economic
loss. (Id. at pp. 663-664.) “No
abuse of that discretion occurs as long as the determination of economic loss
is reasonable, producing a nonarbitrary result.†(Id.
at p. 665.)
Restitution
is mandatory. “[I]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. . . . The court
shall order full restitution unless it finds compelling and extraordinary
reasons for not doing so and states them on the record.†(§ 1202.4, subd. (f).) While the victim’s right to restitution is to
be broadly and liberally construed (People
v. Phu (2009) 179 Cal.App.4th 280, 283), restitution should not result in a
windfall (People v. Busser (2010) 186
Cal.App.4th 1503, 1510).
In
this appeal, Bermudez renews the arguments he made below and reiterates that
the proper starting point for calculating Thomas R.’s restitution should be the
amount of the loans. He claims that
basing the restitution on the 2006 appraised value of the house, without taking
into consideration the amount Thomas R. received from the loan proceeds,
results in a windfall. We disagree.
The
trial court acted well within its discretion in declining to base its
calculation of the restitution award on the sum of the loans. This sum would not have reflected
Thomas R.’s full loss because the record is clear that Thomas R.’s house,
which was eventually lost in foreclosure as a result of Bermudez’s fraud, was
worth substantially more than the loans.
The application for the first loan stated that the house was worth
$700,000, and the mortgage broker at the time of the third loan estimated the
value of the house to be $750,000. This
mortgage broker testified that he would not have arranged a loan for anywhere
near the total value of the property, and he believed that it was “safe†to
lend another $200,000. The total
encumbrances with the third loan ($550,000) would amount to less than 75
percent of the property’s estimated value.
This evidence makes it clear that at the time of the loans Thomas R.’s
home was worth substantially more than their sum.
Bermudez
suggests that the trial court’s reliance on just one appraisal report was
speculative. We disagree. Even if we were to conclude that a single
appraisal in a case like this is an insufficient basis to support a restitution
order—a conclusion we need not and do not reach—there is ample evidence in the
record supporting the reasonableness of the trial court’s measurement of Thomas
R.’s loss. As mentioned above, the
evidence shows that the value of the house ranged from a low of $650,000 to
over $750,000. It was to Bermudez’s
benefit that the trial court selected the lowest
of these valuations in calculating Thomas R.’s restitution, and Bermudez is in
no position to dispute these valuations now after having readily accepted them
when profiting from his crime.
Bermudez
also argues that the trial court should not have calculated restitution by
using the home’s value at the time Thomas R. was defrauded and points out that
the property was eventually sold for $470,000.
But this sale took place years later, after a foreclosure, and its
distressed price was by no means an accurate measure of Thomas R.’s full
loss. (See People v. Giordano, supra, 42 Cal.4th at p. 658 [object of
restitution is to restore economic status quo]; see also People v. Chappelone (2010) 183 Cal.App.4th 1159, 1181-1182 [trial
court could have ordered defendants to pay victim for value of goods when
stolen].)
We
are not persuaded by Bermudez’s contention that the trial court was required to
offset the restitution award by the relatively small amount of the loan
proceeds that Thomas R. received. Once a
victim makes a prima facie showing of economic loss, the burden shifts to the
defendant to disprove the amount of loss claimed by the victim. (People
v. Taylor (2011) 197 Cal.App.4th 757, 761; see also People v. Vasquez (2010) 190 Cal.App.4th 1126, 1137 [defendant
seeking offset or credit to restitution order had burden of proof as to each
fact essential to claim for relief].)
Here, Bermudez has failed to meet this burden.
Thomas
R. never denied that he received and spent some of the loan money. But Bermudez’s characterization of that
amount as “a significant portion of the loan money†finds no support in either the
evidence introduced at the restitution hearing.
The larger amounts cited by Bermudez—up to $25,000 for kitchen
remodeling expenses and $2,000 for a TV—went for improvements to the house and
personal property that Thomas R. lost when he was removed from his home, and it
was foreclosed upon. The smaller
amounts—periodic ATM withdrawals of up to $300—did not add up to a substantial
sum in relation to the overall loss.
Bermudez suggests that some of these withdrawals may have benefitted
people associated with Thomas R. But
these suggestions were never adequately proven and, were it not for Bermudez’s
criminal conduct, these people would never have been able to access the account
because it would not have existed.
Bermudez
argues that the larger ($5,000 to $10,000) withdrawals that Thomas R. withdrew
in person at the bank benefitted Thomas R.
In support of his claim, he cites the March 2007 agreement in which
Thomas R. acknowledged receiving $182,260 from the loan proceeds. This amount was apparently intended to
reflect the funds deposited into Thomas R.’s bank account when the first two
loans closed. But the evidence shows
that much of this did not end up in Thomas R.’s pocket. The clear import of the preliminary
examination testimony was that while some loan proceeds went into Thomas R.’s
bank account, most withdrawals from that account were for the benefit of
Bermudez. In light of this testimony, it
became Bermudez’s burden—one that he failed to satisfy—to show with some degree
of specificity how much of the money truly went to Thomas R. We conclude that the trial court acted well
within its discretion in disregarding the self-serving agreement Bermudez had
prepared after the loans were made.
The
law does not require that “the restitution order be limited to the exact amount
of the loss in which the defendant is actually found culpable, nor is there any
requirement the order reflect the amount of damages that might be recoverable
in a civil action.†(
10 Cal.4th 1114, 1121.) Here,
Bermudez criminally induced Thomas R. to mortgage his home, used most of the
loan proceeds for his personal benefit, and caused the property to be lost to
Thomas R. through a foreclosure. Under
these circumstances, the trial court acted well within its discretion in
awarding restitution based on the appraised value
of property at the time of the crime.
III.
DISPOSITION
The
restitution order is affirmed.
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo, P. J.
_________________________
Rivera, J.
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Penal Code.
