P. v. Ouriel
Filed 3/11/13 P. v. Ouriel CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
,
Defendant and Appellant.
B235094
(Los Angeles
County
Super. Ct.
No. SA073017)
APPEAL
from a judgment of the Superior Court
of
County. H. Chester
Horn, Judge. Affirmed.
Linda
Acalado, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson amd Ryan
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Appellant
Robert Ouriel appeals the trial court’s restitution order awarding the victim
more than $200,000 for the losses suffered as a result of a
committed. Appellant asserts that the restitution
award ordered by the court was not supported by sufficient evidence in three
respects: (1) the evidence presented at the hearing failed to establish the
value of the jewelry taken in the charged burglary; (2) the court awarded
restitution for a piece of jewelry—an emerald necklace—that was recovered and
returned to the victim; and (3) the award of incidental expenses claimed by the
victim was not supported by the evidence, and was not limited to expenses
incurred as a result of appellant’s criminal
conduct. Appellant also argues his
counsel was ineffective because counsel failed to (1) examine certain evidence
relating to the jewelry; (2) object to the incidental expenses and other
awards; and (3) properly prepare appellant’s expert witness. As explained below, appellant’s claims lack
merit. There is sufficient evidence to
support the restitution awarded, and the trial court acted within its
discretion awarding restitution for the losses, including expenses that the
victim incurred as a result of appellant’s crime. Furthermore, appellant has not demonstrated
that he suffered prejudice as a result of his counsel’s representation during
the restitution proceedings.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The
victim, Julie Newmar reported that sometime between October
25, 2008,
and November 3, 2008, jewelry was stolen from her home (“First Burglaryâ€). According to Newmar, many of the jewelry
pieces were custom designed. Newmar valued the collection at $250,000, but “in
sentimental value, it is worth a million dollars.â€
Subsequently, Newmar reported a second residential burglary when jewelry
and electronics equipment were stolen from her home on April
9, 2009
(“Second Burglaryâ€).
Shortly
thereafter Newmar reported to detectives investigating the crimes that she had
located some of the jewelry stolen during the First Burglary on eBay, an
on-line auction website. A company by
the name of “Gemrush,†located in Round Lake Beach, Illinois, was conducting the auction of the
jewelry on eBay.
In
addition to reporting the crimes to police, Newmar contacted appellant, who was
her attorney at the time. Appellant
purportedly contacted Gemrush and asked that it cancel the auction on-line. According to Newmar, appellant stated that
the owner of Gemrush did not know where he obtained the jewelry.
Los Angeles police detectives investigating the
crimes contacted police detectives in Illinois, who in turn also contacted
Gemrush. An owner of Gemrush told the
police that the jewelry was purchased at a flea market. The seller claimed that the jewelry belonged
to a neighbor of Jim Belushi in Los Angeles (Newmar is Belushi’s neighbor). Police retrieved an emerald necklace and
three sets of earrings from Gemrush and sent it to Los Angeles.
Some of the jewelry had been altered.
Newmar indicated that a 20 to 25 carat green emerald stone was missing
from the emerald necklace that had been returned.
In
June of 2009, an anonymous tip to police implicated appellant as the
perpetrator of the two burglaries at the Newmar home. The tip also disclosed that appellant and
Newmar had been in a relationship, that the large emerald stone had been a gift
from appellant to Newmar, and that appellant claimed to have contacts in Illinois.
Based
on the tip, police re-interviewed the owners of Gemrush. According to one of
the owners, appellant sent the stolen jewelry to Gemrush, claiming that the
jewelry had been obtained from an estate
sale.
Appellant
was arrested and charged with grand theft
of personal property in the First Burglary.
(Pen. Code,
name="_ftnref1" title="">[1] § 487, subd. (a).)
Appellant pled not guilty.
However, before the preliminary hearing, appellant withdrew his not
guilty plea, and entered a plea of nolo contendere. The trial court accepted the factual basis
for appellant’s plea and found him guilty of the First Burglary. The court suspended the imposition of
sentence and appellant was granted three years of formal probation, provided he
serve 45 days of community service and pay full restitution to Newmar.
After a restitution hearing, appellant was ordered to pay victim
restitution of $221,775.
Appellant
filed an appeal.
name="_ftnref4" title="">[4]
Appellant also filed a petition for a writ of habeas corpus.
DISCUSSION
In this court appellant claims that
the restitution award was not supported by sufficient evidence and that his
trial counsel was ineffective in failing to contest the evidence presented at
the restitution hearing.
I. Sufficiency of the Evidence
Appellant
asserts that the restitution award ordered by the court was not supported by
sufficient evidence because: (1) the evidence presented at the hearing failed
to establish the value of the jewelry taken in the First Burglary; (2) the
court awarded restitution for a piece of jewelry—the emerald necklace—that had
been returned to Newmar; and (3) insufficient evidence supported the award of
incidental expenses, and that award of the expenses was not limited to those
losses suffered in the First Burglary.
A. Evidence Presented at the Restitution
Hearing
At
the restitution hearing the prosecutor presented a document entitled “Jewelry
Appraised by Steven Robinson,†entered into evidence as People’s Exhibit No. 2
(“Appraisal Reportâ€). The Appraisal Report
contains a photograph, brief description and the appraised value of each piece
of jewelry (and other items) stolen in the First and Second burglaries. The Appraisal Report valued the missing
jewelry from the First Burglary at $157,550 and valued items stolen in the
Second Burglary at $341,695.11.
Newmar
testified that she had commissioned the Appraisal Report from Mr. Robinson, who
was an expert jeweler. She further
explained how the information contained in the Appraisal Report had been
prepared and compiled. Newmar testified
that after the theft of her jewelry, she began to research and gather
information, including photographs of the stolen and missing pieces of
jewelry. Newmar also testified all of
the jewelry had been custom made and that she consulted with Myrna Katz, the
designer of many of the pieces of jewelry.
After assembling all the photographs and information from Ms. Katz,
Newmar provided it to Robinson who appraised the jewelry and prepared the
Appraisal Report.
In
addition to presenting the written appraisal, Newmar testified about each piece
of jewelry listed in the Appraisal Report and stated that in her opinion, the
depictions of the stolen jewelry in the report were accurate. Newmar also testified that when she first
spoke to police, she was unsure of everything that had been stolen and at the
time she undervalued the jewelry’s worth.
Newmar conceded that she was not an expert at jewelry appraisal, but
nonetheless testified that after speaking to experts and having the items
appraised, she thought the appraised value listed by Robinson in the Appraisal
Report on most
name="_ftnref6" title="">[6] of the items of jewelry was accurate.
Newmar
also presented her expenses she incurred in connection with the case in Exhibit
No. 7 (“Summary of Expensesâ€). These
expenses, totaling $20,899, included the
cost of the security system, Newmar’s personal time, fees paid to her
secretarial staff, a researcher, a computer application and attorney fees.
Patrick
Davis, a professional jewelry appraiser, testified for the defense. Davis reviewed the Appraisal Report. According to Davis, the Appraisal Report was
vague and failed to include certain key elements in the appraisal process including
stating the intended use of the report, whether it was a hypothetical report,
or the report’s approach to obtaining the value of the jewelry. In addition, according to Davis, the
Appraisal Report failed to follow uniform standards of professional appraisal. Davis conceded that an appraisal could be
based on photographs of the jewelry and other descriptive information, but that
the Appraisal Report should, but did not, disclose the basis upon which
valuation was derived. Davis further
testified that he could not determine the value of the jewelry based upon
information in the Appraisal Report.
Nonetheless, Davis also testified that he could not state Newmar’s
appraisal fell outside a reasonable range of value for the items listed.
Appellant
also presented a declaration from Scott Goldstein (who sold the missing large
emerald stone to appellant), opining that the 20 carat emerald stone was only
worth $47 to $50 per carat. Goldstein
estimated the emerald necklace’s value as between $2,000 and $3,000.
In
a written ruling, the trial court ordered appellant to pay restitution as
follows:
The court conducted two days of
evidentiary hearings to determine the appropriate restitution since the theft
involved significant amounts of jewelry from the victim, Ms. Julie Newmar. The court has concluded that Ms. Newmar is
entitled to restitution in the amount of the estimated value of the stolen
jewelry, $157,550.00, plus interest from the date of loss of 10% per year, plus
incidental expenses suffered by Ms. Newmar as a result of the theft, totaling
$20,899.00. (See Penal Code section
1202.4(f)(3)(g).) Since the date of loss
was the date of the theft from Ms. Newmar’s home by defendant in late October,
2008, a period of 2 years and 9 months, the interest amounts to $43,326. Accordingly, the court orders the defendant,
Robert Ouriel, to pay restitution to Ms. Julie Newmar in the amount of
$221,775.00.
The court finds that the estimated
value of the jewelry as calculated by Mr. Steven Robinson, the expert jeweler
retained by Ms. Newmar, are reasonable and therefore accepts them. The court has also accepted the estimated
incidental expenses testified to by Ms. Newmar and outlined in People’s Exhibit
7. While the defendant did present
testimony from his own expert jewelry appraiser disputing Mr. Robinson’s
estimates, that expert testified that he could not conclude that Mr. Robinson’s
estimates for each of the stolen jewelry items fell outside of the range of
reasonable estimated values for those items.
Since defendant’s actions are responsible for the losses and the fact
that the items are no longer available for appraisal by experts, he must bear
any burden of uncertainty.
B. Relevant Law
Section 1202.4 governs restitution in criminal cases. That statute not only provides that
restitution fines should be imposed on a person convicted of a crime, it also
describes the type of losses and expenses for which the victim of the crime can
receive restitution.
(§ 1202.4) This includes
restitution for the value of stolen items as well as incidental expenses. The term “loss,†in section 1202.4, is
construed broadly and liberally to uphold the voters’ intent. A trial court may compensate a victim for any
economic loss which is proved to be the direct result of the defendant’s
criminal behavior, even if not specifically enumerated in the statute. The only limitation the Legislature placed on
victim restitution is that the loss must be an “economic loss incurred as the
result of the defendant’s criminal conduct.†(People v. Moore (2009) 177 Cal.App.4th 1229,
1232.)
Accordingly, the
trial court has broad discretion in choosing a method for calculating
restitution as long as the method is rationally designed to determine the
victim’s economic loss. (People v.
Maheshwari (2003) 107 Cal.App.4th 1406, 1409.) The trial court also has virtually unlimited
discretion as to what information it can consider and where the information
comes from in establishing the restitution amount. (People v. Hove (1999) 76 Cal.App.4th
1266, 1275, citing People v. Foster (1993) 14 Cal.App.4th 939, 947,
superseded by statute on other grounds as stated in People v. Birkett (1999)
21 Cal.4th 226, 238-245.) “There is no
requirement 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.†(People v. Carbajal
(1995) 10 Cal.4th 1114, 1121.) The
victim’s assessment of economic loss is prima facie evidence of loss for the
purposes of restitution; a victim can establish a prima facie case regarding victim’s
losses through victim’s own testimony.
(People v. Millard (2009) 175
Cal.App.4th 7, 26; People
v. Gemelli (2008)
161 Cal.App.4th 1539, 1543.) Moreover,
there is no requirement that the victim provide a sworn proof of loss or
detailed documentation of costs and expenses.
(In re S.S. (1995) 37 Cal.App.4th 543, 548, fn. 2; see also,
e.g., People v. Keicherler (2005) 129 Cal.App.4th 1039, 1048.)
Furthermore,
the standard of proof at a restitution hearing is by a preponderance of the
evidence, not proof beyond a reasonable doubt. (
Cal.App.4th at p. 26.) Once the victim establishes a prima facie showing of the
economic loss that the victim suffered, the burden shifts to the defendant to establish that the amount of loss is
less than that claimed by the victim. (
757, 761.)
On
appeal we presume that the restitution award is correct. (People v. Giordano (2007) 42 Cal.4th
644, 666.) The trial court’s
determination of the amount of restitution ordered will not be reversed on
appeal absent an abuse of discretion. The trial
court may not make an order that is arbitrary or capricious and the order must
be affirmed if there is a factual and rational basis for the amount of
restitution that is awarded. (
1376, 1382; People v. Harvest (2000)
81 Cal.App.4th 641, 653; People v.
Holmberg (2011) 195 Cal.App.4th 1310, 1320; People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) No abuse of discretion is shown simply
because the order does not reflect the exact amount of the loss. (Akins,
supra, 128 Cal.App.4th at
p. 1382.) The reviewing court will only determine whether there is
sufficient evidence to support the inferences drawn by the trier of fact, and
it will not reweigh or reinterpret the evidence. (People v. Tabb (2009)
170 Cal.App.4th 1142, 1153, citing People v. Baker (2005) 126
Cal.App.4th 463, 469.)
With these principles in mind, we turn to appellant’s
contentions with respect to the sufficiency of the evidence supporting the
restitution award.
C. Analysis of Appellant’s Claims
1. Sufficient
Evidence Supported the Value of the Jewelry Stolen
in the First Burglary
In our view sufficient evidence supported the court’s
order of $157,550 (plus interest) for the value of the jewelry stolen in the
First Burglary. The amount of the loss
was established in the Appraisal Report.
Newmar provided the foundation for the report describing the information, descriptions and photographs
she provided to Mr. Robinson to assist him in assessing the value of the items
described in the Appraisal Report. The
Appraisal Report, standing alone is a sufficient basis upon which to
demonstrate the value of the loss. (See
People v. Hove, supra, 76 Cal.App.4th at p. 1275 [finding an
appraisal report is sufficient evidence to support loss].) In addition, Newmar testified that she believed that the appraisal
was accurate. (See People v. Prosser (2007) 157 Cal.App.4th 682, 684 [“When an owner
of stolen personal property testifies as to its value at a restitution hearing,
his or her testimony constitutes prima facie evidence of valueâ€].) Although, appellant’s expert Mr. Davis found
the report deficient in certain respects, even he could not say that the
assessed value of the jewelry contained in the Appraisal Report fell outside a reasonable range of
value for the items.
Given the broad discretion the court is afforded in
determining restitution and the breadth of information upon which the trial
court is permitted to rely in determining restitution, we conclude that the
evidence presented was sufficient to support the court’s award. All of appellant’s arguments to the contrary
would require this court to reweigh the evidence that was presented below. As we observed elsewhere, the trial court
weighs and interprets the evidence and resolves all conflicts in it, and absent
a showing that the trial court is arbitrary or capricious, we must affirm the order. Appellant
did not carry his burden to demonstrate the proffered values were
erroneous. Accordingly, there is a
sufficient factual and rational basis for the amount of restitution awarded for
jewelry stolen in the First Burglary.
2. Jewelry Returned to
Newmar: Emerald Necklace
In addition to assailing the
evidence supporting the restitution award as a whole, appellant also contends that the restitution order
includes an award representing value of the stolen emerald necklace (item 39 in
the Appraisal Report). He points out
that the emerald strand of beads was recovered from Gemrush and that only the
large emerald stone was still missing.
Appellant argues that the amount awarded by the court for
restitution for item 39 – $22,000 – reflects the value of the entire necklace
rather than the value of the missing stone.
Appellant
maintains that he is only responsible for restitution for the missing
emerald, not the complete emerald necklace.
We do not agree with appellant’s
interpretation of the evidence. The
Appraisal Report does not expressly indicate that the figure represents an
award for the entire necklace rather than the value of the missing emerald
stone encased in gold and diamonds. The
Appraisal Report contains a photograph of the necklace with a large emerald and
one photograph of the necklace without the large emerald. The description of the item in the report
states only: “Not returned: large emerald gold and diamonds†and lists a value
of $22,000. At the restitution hearing,
Newmar stated that she did not know how Robinson determined the value of the
emerald but assumed that he included the value of the gold and diamonds as
well. She further admitted that she did
not know whether Robinson determined a value for the stone alone, and in her
view it appeared that he evaluated the “whole thing.†When questioned as to whether the “whole
thing†meant that he had assessed the value of the entire necklace, Newmar
responded that because the bead strands of the necklace had been returned to
her she did not believe the value listed reflected the entire necklace. It is thus clear from Newmar’s testimony that
she believed that the $22,000 figure in the Appraisal Report reflected the
value of the emerald stone, encased in gold and diamonds, rather than the value
of the entire necklace.
In addition, the Appraisal Report
provides sufficient evidence for the court to find that the value of the
emerald stone encased in gold and diamonds was $22,000. Even though appellant presented a declaration
(from the person who originally sold the stone to appellant) to support the
claim that the stone was worth far less than Robinson’s estimate, appellant’s
estimate does not include the value of gold and diamonds that encased the stone. Moreover, appellant’s expert Mr. Davis could
not say that any of the values of the items in the appraisal were
unreasonable. In light of the foregoing,
we cannot say the trial court acted beyond the bounds of its broad discretion
in fixing the amount of restitution for this item.
D. Award of Incidental Expenses
Appellant argues that trial court erred in awarding
$20,899 in incidental expenses to Newmar.
He presents several arguments with respect to the expenses. First, appellant contends that the awarded expenses
were not directly attributable to his criminal conduct charged in the First
Burglary, but also included expenses Newmar incurred because of the Second
Burglary. Second, appellant challenges
the basis of individual incidental expenses awarded by the court, including the
cost of the security system, Newmar’s personal time, fees paid to her
secretarial staff, a researcher, a computer application and attorney fees,
arguing that Newmar was not legally entitled to recover those expenses and/or
that she failed to present sufficient evidence that they had been
incurred. We address these claims in
turn.
title="">[7]
and Appellant’s Criminal Conduct
Initially the prosecution proceeded
under the theory that appellant should pay restitution for both the First and
Second Burglaries, even though appellant was not charged or convicted of the
Second Burglary. As a result, both the
Appraisal Report and the Summary of Expenses included information that pertained
to both burglaries. The Appraisal Report
listed and valued the missing jewelry separately, segregating the jewelry
stolen in the First Burglary from that stolen in the uncharged Second
Burglary. However, the “Summary of
Expenses†Exhibit 7 did not specifically apportion the expenses between the
charged and uncharged crimes. In fact,
the document is entitled: “Summary of
Expenses Incurred in Dealing with Burglary Incidents.â€
Before the prosecution presented the
evidence relating to the expenses, the court addressed the issue of whether restitution
could be based on both burglaries.
Appellant’s counsel asserted that the restitution should be limited only
to the losses suffered as a direct result of the First Burglary. The court acknowledged that under certain
circumstances where the evidence presented and/or the defendant’s waivers and
admissions made in connection with the defendant’s plea agreement include the
uncharged conduct as part of the plea, the court can award restitution for
losses incurred based on the uncharged conduct.
However, the court also observed that in this case appellant’s plea did
not include admissions or statements relating to the Second Burglary and that
in fact, the “waiver form that was presented to the court that took the plea .
. . limits the restitution to restitution to be determined at a hearing for the
charged offense.†Accordingly, the court
ruled that “restitution will be limited to the charge to which Mr. Ouriel pled,
and the losses suffered by Ms. Newmar as a result of that charged conduct, we
will limit the testimony on the remaining aspects of the evidentiary hearing on
those issues.â€
Thereafter the prosecution presented
the Summary of Expenses, Exhibit 7, and asked Ms. Newmar about the expenses
incurred, framing the inquiry to focus on expenses incurred in connection with
the “burglary.†Newmar explained that
she had to incur expenses for “research, secretary, computer, prints,
[attorney] time, an appraiser and security.â€
She stated that the security system was added after the burglaries
because she did not want to be victimized again. When she was asked what tasks the individuals
listed on her expense sheet performed, Newmar explained that they helped her
research and compile the information for the appraisal of the stolen
jewelry. She further testified that she
and her assistants expended “hundreds of hours†assembling information relating
to her losses. She admitted she did not
know exactly how much jewelry she owned before the burglaries and that she still
did not know how many pieces of jewelry had been taken. She stated that significant resources and
effort had been dedicated to determining when various pieces of jewelry had
gone missing.
Based on the record before us, we cannot say that the
trial court’s decision to award $20,899 in incidental expenses is irrational. (People v. Ortiz (1997) 53 Cal.App.4th
791, 800 [the trial court may use any rational method of fixing the amount of
restitution which is reasonably calculated to make the victim whole].) The trial court has broad authority under
section 1202.4 to award incidental expenses to Newmar. In fact, as discussed elsewhere, the trial
court has the authority to award restitution for any economic damages that the
victim incurred. So long as there is
evidence that the loss is attributable to defendant’s conduct, the court is not
limited to award restitution
only in the exact amount of the loss which the defendant is actually found
culpable.
Newmar presented evidence that she suffered economic loss
by paying researchers, secretary, an attorney, and by obtaining an appraisal to
determine what had been stolen and when it had been stolen; to locate some of
the stolen pieces, to determine the value of her lost property; to secure her
property from future crimes and to prepare for this case. Regardless of the occurrence of the Second
Burglary, Newmar would have incurred these types of expenses. Indeed, Newmar testified that she installed
the security system not because she had been burglarized a second time, but
because she did not want to be the victim of burglary again. Thus, the only issue is whether the $20,899
awarded fairly reflects the amount of expenses incurred as a result of the
First Burglary.
In our view, the trial court did not abuse its
discretion in awarding the expenses.
Based on Newmar’s testimony it appears that this is not the kind of case
where it was a simple and quick task to determine which items had been taken in
each burglary. Newmar stated that
hundreds of hours had been devoted to the task and she had yet to discover the
full extent of what was stolen. These
unique circumstances—i.e., the nature of and number of items stolen, and the
tremendous effort expended, and difficulty in determining what had been stolen
and when it had been taken—reasonably justify the court’s implicit conclusion
that the losses were a result of appellant’s criminal conduct as well as the
court’s explicit ruling that Newmar was entitled to the full amount of the
expenses sought.
2. Legal Basis for Incidental Expenses
Awarded
Appellant’s next argument is that the trial court erred
in awarding Newmar restitution for the installation of the security
system.
Section 1202.4, subdivision (f)(3)(J) provides for
restitution of “[e]xpenses to install or increase residential security incurred
related to a crime, as defined in subdivision (c) of Section 667.5, including,
but not limited to, a home security device or system, or replacing or
increasing the number of locks.â€
(§ 1202.4, subd. (f)(3)(J).)
In
addition to arguing that the security system expense was necessarily a result
of the Second not the First Burglary, appellant also asserts that the
restitution for a security system should not have been granted because
appellant’s crime was not a violent felony.
Appellant’s arguments lack merit.
Under section 1202.4, an award is not limited to
restitution for violent felonies. Where a
defendant is convicted of a violent felony, the statute provides the trial
court “shall†include in the victim restitution award expenses reasonably
incurred by a victim in installing a security system. (§ 1202.4, subd.
(f)(3)(J).) But the statute does not
preclude the court from awarding expenses for security systems in other cases
as well. In fact, the statute provides a
nonexclusive list of items of restitution.
(§ 1202.4, subd. (f)(3) [using phrase “including, but not limited
toâ€].) “Because the statute uses the
language ‘including, but not limited to’ these enumerated losses, a trial court
may compensate a victim for any economic loss which is proved to be the direct
result of the defendant’s criminal behavior, even if not specifically
enumerated in the statute.†(People
v. Keichler (2005) 129 Cal.App.4th 1039, 1046.) Thus, where a victim incurs the economic loss
of installing a security system as a direct result of defendant’s conduct, the
trial court may include that amount in a victim restitution award regardless of
whether the defendant was convicted of a violent felony.
Newmar testified that the security
system was installed
name="_ftnref8" title="">[8] as a result of appellant’s commission of
burglary. Newmar’s testimony is
sufficient in this case to establish that the security system was installed as
a result of the First Burglary.
Therefore, the restitution award for the security system was not improper.
b. Newmar’s Personal
Expenses, Staff Time and Computer Expenses
Appellant’s argument regarding the
restitution award for Ms. Newmar’s time is also unavailing. Appellant contends that Ms. Newmar should not
have been awarded any amount due to the personal time that she spent tracking
the stolen jewelry pieces and preparing items for this trial because Ms. Newmar
failed to show that she passed up work opportunities or lost actual wages. Moreover, appellant asserts that Ms. Newmar
failed to establish that her time is worth $150 per hour.
A victim may establish a prima facie showing of economic
loss based on victim’s own testimony. Section
1202.4, subdivision (f)(3) states, in part: “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.†Newmar testified that she expended her personal time
preparing evidence for the court and locating the stolen items on the
internet. The cost of this in terms of
Newmar’s own time was represented to be $9,000.
Newmar’s testimony and the incidental expenses sheet was sufficient
evidence to establish that this restitution award was appropriate.
Likewise Newmar presented evidence that she required
secretarial staff and computer application assistance to compile and organize
the information relating to her losses. It was within the trial court’s
discretion to find that amount reasonable.
Based on the record, the court did not err in awarding these expenses.
Appellant also argues that it was not proper for the
trial court to award restitution related to attorney fees Newmar incurred. Appellant contends the award of restitution for the
contingency fee was unreasonable as the trial court should have first
determined what would be a reasonable fee under the Lodestar method for
calculating attorney fees.
We agree with the Attorney General that the Loadstar
Method is not the appropriate method to use in this case to determine
fees. (See People v. Taylor (2001) 197 Cal.App.4th 757, 763). The Lodestar Method is a fee shifting mechanism
applied in certain contexts such as civil litigation which confers a
“‘significant benefit’†to the public, or to provide compensation for the
enforcement of public rights under a private attorney general theory, or to
bring about attorney fee shifting to discourage SLAPP suits. In contrast, victim restitution presents
different interests—the “primary purpose of victim restitution is to fully
reimburse the victim for his or her economic losses.†(Ibid.)
Even using appellant’s reasoning, the Lodestar Method
would still not be appropriate to use here.
The Lodestar Method as appellant himself points out is utilized when the
statute does not provide otherwise.
Here, the statute clearly provides for actual attorneys fees. Here, the actual attorney fee is known and
therefore there would be no need to use the Lodestar method.
Appellant also argues that the fees for counsel’s
attendance during the hearing were not “costs of collection.†As the Attorney General points out, there was
testimony that Newmar hired counsel as a direct result of the First Burglary. Newmar’s attorney advised her and assisted
her in locating documents to present to the Court. Accordingly, the trial court was within its
purview to award fees to Newmar as these were actual costs for an attorney.
II. Ineffective Assistance of Counsel
In
appellant’s direct appeal he claims that trial counsel provided ineffective
assistance in various respects in restitution proceedings. As
we shall explain, appellant has failed to demonstrate that he suffered
prejudice as a result of his counsel’s representation.
“‘Generally, a conviction will not be reversed based on a
claim of ineffective assistance of counsel unless the defendant establishes
both of the following: (1) that counsel’s representation fell below an
objective standard of reasonableness; and (2) that there is a reasonable
probability that, but for counsel’s unprofessional errors, a determination more
favorable to defendant would have resulted.
[Citations.]’†(
379, 383; Strickland v. Washington
(1984) 466 U.S. 668, 687-688, 694; People
v. Waidla (2000) 22 Cal.4th 690, 718.)
Prejudice must be affirmatively
proved. “‘It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
the proceeding. . . . The defendant must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ [Citations.]â€
(People v. Ledesma (1987) 43
Cal.3d 171, 217-218.) If the defendant
fails to make a sufficient showing either of deficient performance or
prejudice, the ineffective assistance claim fails. (People
v. Foster, supra, 111 Cal.App.4th
at p. 383.)
A court should proceed directly to
the issue of prejudice if it is easier to dispose of an ineffectiveness claim
on that basis. (Strickland, supra, 466
U.S. at p. 697;
1223, 1241; People v. Holt (1997) 15
Cal.4th 619, 703; In re Fields (1990)
51 Cal.3d 1063, 1079.)
With these guidelines in mind, we review appellant’s
claim of ineffective assistance of counsel.
Examine Certain Evidence
Appellant asserts that his counsel
was ineffective for failing to examine the copies of checks Newmar used
to purchase the stolen jewelry.
Before the restitution hearing,
appellant twice subpoenaed Newmar for copies of checks she used to pay Katz for
the jewelry, but Newmar did not produce them prior to the restitution
hearing. Although appellant conceded
that the checks were not relevant as to the issue of the current market value
of the missing jewelry, he argued that the checks were relevant to Newmar’s
credibility. Appellant asked a for
continuance of the proceedings so he could obtain the evidence. The court denied the motion for the
continuance and quashed the second subpoena.
Thereafter, during her testimony
Newmar indicated she had copies of the checks in her possession at the
hearing. Appellant’s counsel did not,
however, ask for a continuance to examine the checks or even ask to see the
checks. Appellant argues that his trial
counsel’s failure to examine these checks during the hearing amounted to
ineffective assistance of counsel.
We disagree.
Even if we were to assume that the trial court would have afforded
appellant’s trial counsel an opportunity to examine these checks upon request,
appellant fails to demonstrate a reasonable probability that such an
examination would
have changed the outcome. Although trial
counsel did not ask to examine the copies of the checks, he vigorously
cross-examined Newmar about them.
Through his cross-examination, trial counsel was able to demonstrate
that Newmar could not connect any of the payments shown by the checks to the
jewelry she claimed was stolen. Thus,
counsel was able to achieve his original strategic aims with respect to the
checks—he was able to discredit Newmar and neutralize the value of this
evidence. Accordingly, trial counsel’s
performance was not deficient with respect to this evidence.
B. Failure to Object to Certain Evidence
Appellant
also complains that his counsel was ineffective because he failed to: (1) object on the basis that incidental
expenses sought were not limited to the charged burglary, failed to ask for a
continuance to investigate the incidental expenses on the Summary Expenses,
Exhibit 7, and failed to challenge Newmar’s evidence of incidental expenses;
(2) object to the appraisal of the emerald necklace which included the value of
the entire piece rather than only the missing stone; and (3) request that
Newmar produce the jewelry that had been returned to her so that his expert
could examine it.
Expenses
Similar to the argument regarding the copies of the
checks, appellant fails to establish that there is a reasonable probability
that had trial counsel taken the above mentioned actions, that the trial court
would have denied (or even reduced) the restitution awarded. As explained elsewhere, sufficient evidence
supported the trial court’s order of restitution and the court’s order did not
constitute an abuse of discretion.
Appellant has not shown how any action his counsel could have taken with
respect to incidental expenses would have resulted in a different award. Appellant’s argument that counsel should have
requested a continuance to investigate the items on the list, also fails
because he has not shown the requisite prejudice. Indeed, the trial court had refused to grant
a continuance to obtain the checks. The
court also commented that the proceedings had already been delayed for six or
seven months suggesting that further delays would not be permitted. Thus, any request for a continuance would
have been futile; appellant’s counsel was not ineffective for failing to
request it.
Necklace
Appellant also argues his trial counsel should have
objected to the amount of restitution awarded for the emerald necklace because
that amount awarded reflected the value of the entire necklace rather than only
the missing stone. Appellant argues that
the value of the emerald was $1,000 and thus, the rest of the necklace was
valued at $21,000. Appellant argues that
counsel’s failure to object was ineffective assistance of counsel.
Counsel’s assistance was not ineffective. Counsel did object to the value of the
necklace as being $22,000.
Notwithstanding counsel’s objection, the trial court awarded restitution
in the amount of $22,000. As we have
explained elsewhere, the court did not abuse its discretion in fixing
restitution for this item. In light of
this, there is no probability that had trial counsel objected in the manner
that appellant suggests, that the court would have awarded a lower amount of
restitution. Thus, appellant’s argument
that trial counsel was ineffective fails.
(3) Request
to Examine Jewelry
Appellant argues that trial counsel should have
requested that the trial court order Newmar to produce the jewelry that had
been returned to her so that his appraiser could have physically examined the
jewelry rather than pictures of the jewelry.
Appellant further argues that had his expert examined the jewelry, he
would have been better prepared to counter Newmar’s evidence and the trial
court would necessarily have to award a lesser amount. He does not, however, argue that his expert
would have appraised the jewelry at an amount less than Newmar’s
appraisal. Indeed, appellant’s expert
stated that jewelry could be appraised based on photographs and that Newmar’s
appraisal was not unreasonable.
Appellant’s argument is a conclusory statement without any basis as to
why the court would necessarily award a lesser amount. Without any basis for his argument,
appellant’s statement is not sufficient to establish that there is a reasonable
probability that the outcome would have been different.
III. The Court’s Ruling
Appellant
also contends that this matter must be remanded because the trial court’s
ruling fails to indicate with sufficient specificity the basis of the
restitution awarded. Appellant complains
that at the end of the hearing he requested that in the ruling the court state
the “formula and method used for determining the value for each item . . . and
a separate valuation for each item not just a lump sum.†The court responded that it would “state the
basis for my ruling as to valuation.â€
The court’s ruling provides:
The
court has concluded that Ms. Newmar is entitled to restitution in the amount of
the estimated value of the stolen jewelry, $157,550.00, plus interest from the
date of loss of 10% per year, plus incidental expenses suffered by Ms. Newmar
as a result of the theft, totaling $20,899.00.
(See Penal Code section 1202.4(f)(3)(g).) Since the date of loss was the
date of the theft from Ms. Newmar’s home by defendant in late October, 2008, a
period of 2 years and 9 months, the interest amounts to $43,326. Accordingly, the court orders the defendant,
Robert Ouriel, to pay restitution to Ms. Julie Newmar in the amount of
$221,775.00
The court’s
ruling does not constitute reversible error for lack of sufficient
particularity. As noted elsewhere,
“determination of the amount of restitution is reversible only if the appellant
demonstrates a clear abuse of discretion.
[Citation.] No abuse of
discretion is shown simply because the order does not reflect the exact amount
of the loss, nor must the order reflect the amount of damages recoverable in a
civil action. [Citation.] In determining the amount of restitution, all
that is required is that the trial court ‘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.’
[Citation.] The order must be
affirmed if there is a factual and rational basis for the amount. [Citation.]â€
(People v. Akins, supra, 128 Cal.App.4th at p. 1382.)
Here, the
record contains a factual and rational basis for the amount of restitution
awarded. Moreover, the court, in a
written order, provided its rationale for the amount of restitution awarded. The trial court found:
The court finds that the estimated value of the jewelry as calculated
by Mr. Steven Robinson, the expert jeweler retained by Ms. Newmar, are
reasonable and therefore accepts them.
The court has also accepted the estimated incidental expenses testified
to by Ms. Newmar and outlined in People Exhibit 7. While the defendant did present testimony
from his own expert jewelry appraiser disputing Mr. Robinson’s estimates, that
expert testified that he could not conclude that Mr. Robinson’s estimates for each
of the stolen jewelry items fell outside of the range of reasonable estimated
values for those items. Since
defendant’s actions are responsible for the losses and the fact that the items
are no longer available for appraisal by experts, he must bear any burden of
uncertainty.
Thus, the
record reflects that the court articulated the breakdown of the component parts
of the restitution award and the basis of the award. There was nothing arbitrary or capricious
about the trial court’s ruling. It is
sufficiently precise. “To facilitate appellate
review of the trial court’s 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 that method
justifies the amount ordered.†(People
v. Giordano, supra, 42 Cal.4th at p. 664.) The court’s ruling conforms with the
requirements of the law.
DISPOSITION
The judgment is affirmed.
WOODS,
Acting P. J.
We concur:
ZELON, J.
JACKSON, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise indicated.
was not charged with the Second Burglary.
