P. v. Mosley

Filed 1/22/10 P. v. Mosley CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Douglas M. Elwell, Judge. Affirmed.

Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Tina Marie Morrison Mosley pled no contest to grand theft. (Pen. Code, 487, subd. (a).) As a condition of probation, defendant was ordered to provide restitution. Defendant contends she did not receive sufficient notice of the restitution sought, and challenges the denial of a request for a continuance. We affirm.

I.       BACKGROUND

Defendant was the treasurer of a homeowners association (the victim). She wrote checks to herself, sometimes forging signatures to complete checks, and sometimes by having another signatory sign blank checks.

The complaint against defendant alleged that the theft occurred [o]n or about January 1, 2004 through September 1, 2006.

On February 25, 2008, defendants plea was accepted pursuant to an agreement with the People, which provided for formal probation for three years, a maximum of 180 days in prison, and the setting of a formal restitution hearing. The plea agreement also included a Harvey^[1]waiver, permitting the consideration of uncharged activity during sentencing or setting restitution. The Peoples recommendation for the amount of jail time was to range between 90 days and the 180-day maximum, depending on the size of the victims loss. Defendant estimated restitution would be around $9,000, while the People estimated $34,000. The parties stipulated to the police report as providing a factual basis for the plea. In the police report, the victims president reported balancing the books from two years ago and finding approximately $11,000 unaccounted for.

The probation report was filed on March 28, 2008, in anticipation of an April 3, 2008 hearing. The probation report repeated the information from the police report about the $11,000 being unaccounted for in the books from the previous two years. The probation report stated that the victims president felt uncomfortable discussing restitution with the probation officer and was going to speak with the district attorneys office. The report then stated that the district attorneys office subsequently contacted the probation officer to indicate that restitution would be determined at a formal restitution hearing.

The restitution hearing did not occur on April 3, 2008, but instead was continued several times before commencing on November 17, 2008. The Peoples brief regarding restitution was filed the first day of the hearing and requested restitution for the victim in the amount of $37,182.06 based on checks as far back as 2001.

A past president of the victim testified to reviewing checks, which some purported to have his forged signature on them; he also testified to signing blank checks on occasion, as presented by defendant.

The victims current treasurer, who was also a past president, testified. She had reviewed checks in the victims records, check copies obtained from the victims bank, the victims check ledger, and treasurers reports from when defendant was treasurer; she then prepared a summary of unauthorized checks from the victim to defendant. The total value of the unauthorized checks was $36,569.39. She also testified to telling the police on September 1, 2006, that the estimated loss was $11,000, and preparing a proposed budget for a meeting on September 20, 2006, indicating an amount of $4,875 was under investigation from 2005 and an amount of $6,920 was under investigation for 2006. During cross-examination, the treasurer testified to being aware of a letter sent in 2007, from the victim to defendant, demanding payment in the amount of $34,184.39. The treasurer was not aware that defendant had paid $2,400 to the victim in 2006, but was aware that defendant had attempted to issue another check to the victim, which was rejected. The additional check was for $5,000. The treasurer testified that the increase from the $11,000 estimate was because they expanded the review of the records back to 2001. The treasurers summary did not include checks that appeared legitimate to the treasurer; for instance, checks to defendant to reimburse her for buying stamps and light bulbs, as well as for painting curbs. Otherwise, the summary included every check to defendant.

Defense counsel consistently objected to information predating the date on the complaint and going back as far as 2001. On the second day of the hearing, after the trial court indicated it would accept restitution for amounts going beyond the period alleged in the complaint, defendant requested approximately a week[]s continuance to bring [her] expert in regarding the checksthe signature on the checks. Defense counsel stated she needed the original checks from the victim and that she had no basis to find out which checks were being contested, until the past president, whose name had been forged, testified that not all of the checks were checks that he thought were fraudulent. The court denied the request, stating in part that Carbajal^[[2]]has been on the books since 1995 everybody knows what the law is on this. Anybody could have asked the People at any time, are you going to seek reimbursement for restitution prior to January 1st of 2004? I suspect the answer would have been you bet we are. Defense counsel responded, Not if it doesnt appear in the police report, your Honor. The court replied, No. Thats not the question. The question is restitution not the complaint. As I say, Carbajal has been the law since 1995.

The People pointed out in their argument that the evidence was not based solely on forged signatures. The victims summary showed a number of checks that were not claimed to be forged but were signatures that were given in blank and then filled in incorrectly.

The trial court set restitution to the amount claimed by the victim in its summary, $36,569.39, less the $2,400 payment previously made by defendant and not included in the summary, for a total of $34,169.39.

The probation report recommended 120 days in jail; defendant requested fewer days, the People argued for more days on the basis that probation was not aware of the full scope of victims losses. The trial court imposed 120 days.

II.    DISCUSSION

Defendant contends she was (1) denied due process because she did not receive sufficient notice of the restitution sought, and (2) denied effective assistance of counsel because she was denied a continuance to have her expert analyze the check signatures. We disagree with both contentions.

1. Due Process

Defendant contends the restitution determination implicated her liberty interests and thus the right to adequate notice was more acute than in a hearing where only money was at stake. More specifically, appellant complains that the probation report did not indicate that the victim was requesting restitution for amounts beyond those described in the police reports.

If liberty interests were at stake, it is arguable that, the low level of due process protections normally afforded to restitution hearings should have been increased to protect defendants liberty interests. Because we conclude that liberty interests were not at stake beyond the sentencing range agreed to by defendant, we hold that additional due process protections were not required, and under the lesser standard for normal restitution hearings, defendant was provided adequate notice.

A.     The Scope of Required Due Process

Defendant contends the restitution determination implicated her liberty interests because the Peoples sentencing recommendation was to be based upon the amount of victims losses. We disagree.

[N]umerous courts have held that restitution hearings require fewer due process protections than civil hearings or criminal hearings of guilt. [Citations.] (People v. Giordano (2007) 42 Cal.4th 644, 662, fn. 6 (Giordano).) In dicta, our Supreme Court has held out the possibility that if restitution hearings are treated as sentencing hearings, the reasoning of Cunningham v. California (2007) 549 U.S. 270, 281 (Cunningham) may require increased due process protections if a restitution hearing exposes a defendant to a greater potential sentence. (Giordano, at p. 662, fn. 6.) When a restitution hearing is held after sentencing, there is no possibility that the restitution hearing could expose a defendant to a greater sentence. (People v. Millard (2009) 175 Cal.App.4th 7, 36, fn. 11.) Similarly, even though a restitution hearing occurs prior to sentencing, there is no exposure to a greater potential sentence when a defendant is to be sentenced within a sentencing range agreed to by a defendant prior to the restitution and sentencing hearings. This is because the plea agreement set the limit of the potential sentence, and thus, while restitution proceedings could color a trial courts decision within the sentencing range, the defendant is not exposed to a potential sentence greater than that to which the defendant already agreed is permissible.

Here, defendants plea agreement included a maximum sentence of 180 days in jail, with the Peoples recommendation for the jail term to range from 90 to 180 days based upon the amount of victims loss. The plea agreement set the potential term of incarceration as high as 180 days, and the range of the Peoples recommendation was within the agreed upon sentencing range. Thus, defendant was not exposed to a greater potential sentence, and her liberty interests were not at stake beyond the agreed upon maximum term. Accordingly, the due process protection afforded to defendant could be less than a civil hearing or criminal hearing on guilt.

B.     Notice Required to Provide Due Process

Defendant contends that she was not provided sufficient notice prior to the restitution hearing of the restitution claimed. In particular, that the notice was not reasonable under the circumstances. We disagree.

As discussed above, because the restitution hearing did not expose defendant to a greater sentence than she had already agreed to in her plea agreement, defendant was entitled to fewer due process protections than civil hearings or criminal hearings of guilt. (Giordiano, supra, 42 Cal.4th at p. 662, fn. 6.) Notice must be  reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citation.] (People v. Amor (1974) 12 Cal.3d 20, 29.)

Defendant is correct in noting that the probation report did not include a restitution request from the victim, and only included the information as to the victims losses that were in the police report. However, the People informed defendant when she entered her plea that they contended restitution was around $34,000, the victim demanded payment of $34,184.39 in a letter from 2007, and the plea agreement included a Harveywaiver explicitly permitting consideration of uncharged activity when setting restitution. While there was no testimony as to defendant receiving the 2007 letter, defendants trial counsel solicited the testimony from victims treasurer concerning the letter. Thus, defendant must have been aware of the letter and the amount demanded by victim prior to the restitution hearing. Accordingly, defendant had actual notice that the amount demanded by victim was the full amount that victim contended defendant had taken and not just the $11,000 from the two most recent years. Furthermore, the Peoples contention that restitution would be around $34,000, combined with the Harveywaiver, provided constructive notice that the amount sought would exceed the amount identified in the police report. Given that fewer due process protections apply to restitution hearings, defendant had adequate notice of the scope of the restitution hearing to  afford [defendant] an opportunity to present [her] objections.  (People v. Amor, supra, 12 Cal.3d at p. 29.)

To the extent defendant relies on People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 [4th Dist., Div. 2] (Gemelli)and People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 (Keichler) for the proposition that the probation report needed to have an accurate and unequivocal statement of the full restitution amount sought, the dates for which restitution was sought, as well as individual check numbers and amounts per check, defendant is mistaken. Those cases concern evidentiary sufficiency at restitution hearings. Gemelli does not address notice but does provide that the inclusion in a probation report of a victims statement of loss may constitute prima facie evidence of the loss. (Gemelli, at p. 1543.) Keichler specifies that inclusion of information concerning a victims restitution claim in the probation report may be sufficient to satisfy due process notice requirements or establish a prima facie case, and notes that the probation report in that case included an itemized list of amounts sought, a recitation of bills and expenses incurred, and receipts for some of the victims bills. (Keichler, at p. 1048.) However, neither case holds that such information is necessary to satisfy due process or establish a prima facie case. Here, victims prima facie case was, so to speak, established during the restitution hearing.

2. Continuance Request

Defendant requested a continuance so that an expert could review signatures on the checks. Defendant contends that the denial of the request denied her effective assistance of counsel. However, the proposed review would have been immaterial because the trial court relied on the summary prepared by the victims treasurer. The summary included every check to defendant less a few the treasurer considered authorized. This was appropriate because defendant did not just use checks with forged signatures, but also blank checks signed by other authorized signatories. Accordingly, it was immaterial whether an expert could determine whether any check was forged or properly executed.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

McKINSTER

J.

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^[1]People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

^[2]People v. Carbajal (1995) 10 Cal.4th 1114, 1122 (Carbajal) (restitution as a condition of probation where the victims loss was not the result of the crime underlying the defendants conviction [is within the trial courts discretion] where the trial court finds such restitution will serve one of the purposes set out in Penal Code section 1203.1, subdivision (j)).