P. v. Labani





















Filed 8/15/12 P. v.
Labani CA3













NOT
TO BE PUBLISHED













California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Shasta)

----






>

THE PEOPLE, Plaintiff and Respondent, v. TROY BRYAN LABANI, Defendant and Appellant.

C064939 (Super. Ct. No. 08F6451)

Defendant Troy
Bryan Labani pleaded no contest to grand
theft and admitted the theft involved property of over $100,000 in value,
rendering him ineligible for probation.
As part of the plea agreement,
it was agreed that should the amount of restitution be determined to be less
than $100,000, he would be entitled to withdraw his admission to that
enhancement and to the probation ineligibility condition.

After a hearing,
victim restitution was set at $111,640.09, plus a 10 percent administrative
fee. Defendant now contends the
restitution amount should be reduced by $21,020, and accordingly, he also
should be permitted to withdraw his enhancement admission and agreement
regarding the probation ineligibility condition.[1] We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We limit our
recitation of the facts to those necessary for resolution of the issues on
appeal.

Defendant’s
personal business, O’Malley’s Property Management, was hired by Saybrook
Capital (Saybrook) in February 2005 to manage the Stoneridge Apartments in
Tulsa, Oklahoma. Saybrook had an operating account for the
complex with Union Bank.

In 2007 defendant
stopped providing Saybrook with bank statements, and Saybrook’s vice president,
David Rodriguez, noticed first small, then large, transfers of money from the
operating account into another account that had no connection to the Tulsa
apartment complex. Approximately
$173,000 was unaccounted for. After
defendant failed to repay the money as promised, Rodriguez filed a theft
report.

Defendant was
charged with grand theft (Pen. Code, §
487, subd. (a))[2]
and embezzlement of over $400 (§ 503).
It was further alleged as to both offenses that the value of the
property exceeded $100,000 (§ 1203.045, subd. (a)) and defendant caused
property damage in excess of $50,000 (§ 12022.6, subd. (a)), and that the
offenses constituted white collar crime consisting of a pattern of related
felony conduct that involved the taking of more than $100,000 (§ 186.11).

On February 10, 2009, defendant entered
into a plea agreement wherein he pleaded no contest to grand theft and admitted
the allegations that he caused property damage in excess of $50,000 and the
value of the property exceeded $100,000 –- the latter of which rendered him
ineligible for probation. As part of the
plea agreement, it was agreed that defendant would be permitted to withdraw his
plea to the enhancement and probation ineligibility allegation if the amount of
restitution was subsequently determined to be less than $100,000.

A protracted
restitution hearing was held on December
4, 2009, March 5, 2010,
and March 8, 2010. Rodriguez testified and provided
documentation at the restitution hearing.
He holds a credential as a chartered financial analyst and oversaw the
records of expenditures made by defendant. Prior to the hearing, he had researched the
amounts unaccounted for, including expenses associated with payroll for the
apartment complex, construction and maintenance expenses, management fees, and
insurance payments, and attempted to reconstruct the unauthorized transfers
using forensic accounting techniques. He
was not, however, provided with full access to defendant’s corporate account
records.

Defendant also
testified and provided some documentation at the hearing. He disputed the total amount of restitution
owed, claiming certain figures provided by Rodriquez did not account for his
legitimate business expenses and those legitimate expenses should be
offset. He acknowledged, however, that
he did not have documentation, such as invoices, canceled checks, or bank
statements, for many of those expenses.
There was also a $20,000 mathematical error, which Rodriguez conceded.

At the conclusion
of the evidence, making adjustments for the mathematical error and offsets for
those expenses that appeared to be legitimate, the prosecution claimed the
total restitution amount should be $111,640.09.
Defendant argued that Rodriguez did not adequately investigate his
figures and if he had -- and if he had used proper accounting methods -- all of
the moneys would be accounted for as legitimate business expenses.

The trial court
expressly found Rodriguez’s testimony to be credible and uncontested by expert testimony. As for defendant’s credibility, the trial
court “severely questioned” his accuracy and provided, as an example of one of
defendant’s unbelievable statements, defendant’s claim that he had certain
documentation but, despite numerous requests for time to obtain those
documents, did not think he would be asked about them. Concluding defendant had failed to meet his
burden in undermining the amount of restitution being claimed, the trial court
set the amount at $111,640.09. The trial
court noted that this amount gave defendant “the benefit of the doubt on th[e]
questionable amounts.”

DISCUSSION

I

Certificate of Probable Cause

Preliminarily, we
address the People’s argument that the trial court’s denial of defendant’s
request for a certificate of probable cause is fatal to his appeal. (§ 1237.5.)
The People contend that defendant’s appeal “seeks –- at least partially
–- to withdraw his plea.” Thus, they
contend, defendant’s appellate claims are “‘in substance a challenge to the
validity of his plea’” and require the issuance of a certificate of probable
cause.

The first portion
of defendant’s appeal, however, challenges as an abuse of discretion only the
amount of restitution ordered by the trial court. This claim does not require a certificate of
probable cause. (See >In re Harrell (1970) 2 Cal.3d 675,
706 [no certificate of probable cause required to challenge matters subsequent
to plea, not challenging its validity].)

The second portion
of defendant’s appeal, that he is entitled to withdraw his plea, is actually
seeking to enforce the terms of the
plea agreement, not challenge the plea’s validity. No certificate of probable cause is required
when a defendant “simply seeks to implement the full terms of the bargain by
raising appellate challenges to the exercise of individualized sentencing
discretion within the agreed maximum that were reserved by the agreement
itself.” (People v. Buttram (2003) 30 Cal.4th 773, 790.) In any event, defendant’s argument is
premised on successfully challenging the amount of restitution. Because we uphold the trial court’s restitution
order, we do not reach the issue of withdrawal of his plea, so the question of
any requisite certificate of probable cause is moot.

II

Victim
Restitution

Defendant argues
the victim restitution order is excessive because he is entitled to offsets in
the amounts of (1) $15,000 for tile installation, (2) $4,050 for payroll
expenses, and (3) $1,970 for payment for advertisement in the Apartment
Guide, for a total of $21,020. We find
no error.

We review a
challenge to the amount of victim restitution for abuse of discretion. (People v. Baker (2005)
126 Cal.App.4th 463, 468-469 (Baker).) As we have noted, “‘A victim’s restitution
right is to be broadly and liberally construed.’ [Citation.]”
(People v. Moore (2009) 177 Cal.App.4th 1229, 1231.) “‘“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.”’ [Citations.]”
(In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) 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. Fulton (2003)
109 Cal.App.4th 876, 886.)

“Further, the
standard of proof at a restitution hearing is by a preponderance of the evidence, not proof
beyond a reasonable doubt.
[Citation.] ‘If the circumstances
reasonably justify the [trial court’s] findings,’ the judgment may not be
overturned when the circumstances might also reasonably support a contrary
finding. [Citation.] We do not reweigh or reinterpret the
evidence; rather, we determine whether there is sufficient evidence to support
the inference drawn by the trier of fact.
[Citation.]” (Baker, supra, 126 Cal.App.4th at
p. 469.)

Here, the
prosecution made a prima facie case
for restitution in the amount $172,902.09.
Defendant was able, through evidence and stipulation, to establish he
was entitled to offsets and adjustments, leaving the amount in victim
restitution at $111,640.09. Defendant
contends the trial court erred in not setting off an additional (1) $15,000 for
tile installation, (2) $4,050 for payroll expenses, and (3) $1,970 for payment
for advertisement in the Apartment Guide.

Although defendant
argues that the only basis for denying the offsets is that he “did not keep
perfect records,” his claims for these offsets were unsubstantiated by any meaningful
documentation at all. He relies
substantially on his own testimony, which the trial court expressly found not
credible, and the failure of the victim
to provide additional documentation.

Tile Installation

Specifically, with
respect to the $15,000 claimed for tile installation, defendant provided two
receipts from Carpet Depot in Oklahoma City, Oklahoma. One receipt was dated March 27, 2006, and
purported to be a “down payment on tile” in the amount of $3,500, showed a
balance owed of “0,” and had the notation “check #1049.” That receipt indicated that Chris Walters
would pick up the materials. The other
receipt was dated July 26, 2006, and purported to be the “Final Payment on Tile
& Carpet” in the amount of $3,500 and had the notation “Visa.” Defendant also supplied a notarized letter
from the owner of Carpet Depot that stated defendant purchased approximately
30,000 square feet of ceramic tile “for an apartment project” at the Stoneridge
Apartments address and paid in three to five payments totaling $15,000 over the
summer of 2006. Defendant testified that
he paid for the tile with his credit card but did not have the credit card
statement.

On the other hand,
Rodriquez had testified that construction work for improvements would be paid
by Stoneridge Acquisition, LLC, and its limited partner, Key Bank, not by
defendant, and would be paid upon receipt of a release of lien to the
contractor who performed the work, not to any supplier. Furthermore, although some construction work
was being done at the Stoneridge Apartments, there was no documentation that
tile work was performed there. Nor did
Rodriguez receive any statement or other proof as to what credit card or bank
account was used. Moreover, Chris
Walters Construction and the other construction company that worked on the
apartments were paid their bid price in advance, and that price included
materials.

Defendant failed
to produce documentation that tile work was actually performed on the
Stoneridge Apartments, that $15,000 worth of tile was used, or to even prove
his form of payment was from his own account.
In light of testimony that payment for materials by defendant would be
wholly contrary to Saybrook’s standard business practices, and that no explanation
of a reason for variance was provided, the trial court reasonably concluded
defendant failed to meet his burden to disprove the amount of loss claimed.

Payroll Expenses

As to the $4,050
for payroll expenses, defendant claimed two entries on his operating expenses
spreadsheet and repeated on his reconciliation report, in the amounts of $1,050
and $3,000, established that those amounts were legitimate payroll
expenses. The operating expenses
spreadsheet merely lists the two amounts with corresponding dates of April 20,
2007, and April 23, 2007. In the
reconciliation report, defendant merely noted “Invoice Reimburse” on the first
entry and “Reimb 6/06 Payroll” on the second entry. The reconciliation report also includes an
entry on April 12, 2007, for “4/15/07 Payroll” in the amount of $13,960.29, and
an entry on April 30, 2007, for “4/30/07 Payroll” in the amount of $8,600.00.

Defendant
testified he was reimbursing himself for payroll from June 2006 because the
Stoneridge account was not initially sufficiently funded and it finally had
sufficient funds to reimburse him.
According to defendant’s operating expenses spreadsheet, he had paid
almost $20,000 of Stoneridge’s payroll that had yet to be reimbursed. Rodriguez, however, had reviewed the
financial statements, including payroll, and determined that the amounts
transferred into and out of the accounts did not match and that other
documentation showed transfers which, in sum, indicated defendant owed a
significant amount to Stoneridge.

Indeed,
defendant’s reconciliation report also has two additional entries, both on
April 16, 2007, which also purport to “Reimburse” “06” and “6/06” payroll, in
the amounts of $7,500 and $7,750. The
total amount defendant’s own spreadsheet claims he paid for payroll on behalf
of Stoneridge for the month of June 2006 is $10,183.01; and by the end of June
2006, the spreadsheet reflects defendant was allegedly owed (by Stoneridge)
only $13,672.57 for payroll expenses he had allegedly advanced. (SCT 215)
Yet, also by his own records, he had reimbursed himself, specifically
for “6/06,” a total of $16,300 (which amount does not include the additional $3,000 he failed to attribute to any
specific time period but which he now disputes as well). (SCT 225)
Thus, defendant’s own inconsistent records undermine his claim.

In sum, the trial
court could reasonably conclude that the two documents, prepared by defendant,
failed to adequately establish that the two amounts, totaling $4,050, were
legitimate payroll expenses or that defendant was owed that amount in reimbursement
for payroll a year earlier.

Apartment Guide

And finally, as to
the $1,970 for payment for advertisement in the Apartment Guide, defendant
provided Rodriguez and the court with a photocopy of a check issued in that
amount to “The Apartment Guide.” In the
memo line of the check, defendant wrote “May & June SROK.” The check was written on defendant’s company
account, rather than the checking account associated with Stoneridge. Rodriguez noted it was possible that was a
legitimate expense related to the Stoneridge Apartments, but that without
further supporting documentation, it could not be verified.

Defendant
testified that he wrote the check on his account because the Apartment Guide
wanted immediate payment and that is the checkbook he carries with him. Defendant acknowledged he managed other
properties, including some he listed in the Apartment Guide, but stated that
none of those properties advertised in the Tulsa Apartment Guide. Defendant could not provide an invoice.

There is no documentation
on the check or otherwise indicating the payment was made to the >Tulsa Apartment Guide, not another area
guide in which other properties defendant managed may have advertised.

Once again, the
trial court could reasonably find defendant failed to meet his burden of proof.

We do not find an
abuse of discretion.

DISPOSITION

The judgment is
affirmed.







RAYE , P. J.







We concur:







BLEASE , J.







HOCH , J.