P. v. DiMaio
Filed 9/20/13 P. v. DiMaio CA4/3
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opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES VINCENT DiMAIO,
Defendant and Appellant.
G047319
(Super. Ct. No. 10HF2298)
O P I N I O N
Appeal
from a judgment of the Superior Court of
County, Joy W. Markman, Judge.
Affirmed.
Reed
Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Randy Einhorn and Susan
Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant James
Vincent DiMaio was charged in a 16-count amended felony complaint with seven
counts of grand theft (Pen. Code,
487, subd. (a)), five counts of diversion
of construction funds (§ 484b; misdemeanors), and four counts of issuing an
insufficient funds check (§ 476a, subd. (a)).
He pled guilty to all the charges.
The court placed him on five years of formal probation, ordered him to
serve one year in the county jail, imposed a $200 restitution fine, and ordered
him to pay restitution on a number of the counts in an amount directed by the
probation department.
name="_ftnref2" title="">[2] In connection with the grand theft and
diversion of construction funds alleged in counts 15 and 16, respectively, the
court conducted a restitution hearing. At the conclusion of the hearing, the court
ordered defendant to reimburse Reyburn Landscaping $169,750. Defendant appeals, contending the court
abused its discretion in making the restitution order.
I
FACTS
Stuart Reyburn, the
previous owner of Reyburn Landscaping, testified at the restitution hearing. Defendant, who owned Just Palm Trees,
supplied palm trees to Reyburn in the past.
Reyburn had contact with defendant in December 2008, to January 2009, about
supplying Reyburn with Canary Island palm trees for a job at M Casino in Las
Vegas.
to 25-foot Canary Island palms.
Defendant said he could supply the trees within the needed
timeframe. According to Reyburn, the approximate
price was $8,500 per tree, delivered to Las Vegas.
Reyburn sent
defendant an initial check of $13,000 made out to Just Palm Trees, and within a
month sent defendant a wire transfer for $140,300. No trees had been delivered prior to the wire
transfer. Reyburn subsequently sent
defendant another wire transfer for $29,450.
Reyburn said a few of the trees may have been delivered between the
first and second wire transfers.
According to Reyburn, defendant delivered 10 or 12 Canary Island palms
and the customer rejected two of the trees.
The money Reyburn paid defendant ($182,750) was approximately half of
what Reyburn was to pay defendant to deliver the 43 trees needed for the job. Defendant did not deliver any Canary Island
palms other than the 10 or 12 initially delivered.
Reyburn,
telephoned defendant about the need for the additional trees. Reyburn said he was supposed to receive two
to six a week. Defendant gave Reyburn “a
lot of excuses as to why the palms weren’t coming.†Reyburn explained he was on a strict time
schedule, defendant had not delivered more than 10 or 12 trees, and he had
already paid defendant for more than 20 trees.
Defendant said there were two palms trees on a truck outside of town,
but they would not be delivered unless Reyburn had a check to pay the balance
on the two trees. Reyburn said there
would be no more checks until trees arrived at the job site and were accepted
by the customer. Defendant stated the
agreement was 50 percent down and the balance to be paid before the trees left
the truck. Reyburn, who had lost
confidence in defendant’s ability to supply the trees, said he wanted to see
the trees before paying defendant any more money. He offered to pay the balance on the delivered
trees within three to five days.
Defendant said that was unacceptable.
The two trees
that were supposedly on a truck outside of Las Vegas never arrived at the job
site. Reyburn attempted for several
weeks to solve the problem. He asked
where his trees were and defendant said it was out of his hands. He told Reyburn to call Kenny Clemens of
Action Trees. Reyburn eventually asked
defendant for his money back on trees that had not been delivered. Reyburn had to find another supplier to
furnish the remaining trees at an additional cost of $60,000 over and above
what he and defendant had agreed.
Defense counsel
showed Reyburn an unsigned October 27, 2008 invoice for 25 Canary Island palms
at a price of $7,300 per tree. Reyburn
said he recalls he needed more than 25 trees.
He did not appear to take exception to the price per tree.
Defendant
testified he was a palm tree broker; he locates trees for specific jobs. Canary Island palms are not farmed because
they only grow six inches a year. The
trees are sometimes found in back yards.
An offer is made to the owner and, if accepted, the tree is then shipped
to defendant’s customer.
Defendant said
he worked with Action Trees in connection with the M Casino job. He said the normal terms are 50 percent down
and the supplier (Action Trees) would then be paid either by FedEx, wire
transfer, or directly to the truck driver when the trees are delivered. Defendant receives the deposit and forwards
it on to the supplier, absent a commission.
Defendant also produced
an e-mail he wrote to Reyburn stating the Canary Island palms had been delivered
and that he had 17 Pindo palms ready for shipment.
decided it did not want to continue shipping trees to Reyburn because they were
not getting paid. He said the two trees on
a truck just outside of Las Vegas were delivered when Action Trees received a
check.
Defendant said the
initial quote was for 43 trees, but Reyburn subsequently reduced that figure to
35 or 37. Defendant produced a signed
August 21, 2008 invoice for 17 Canary Island palms at a price of $7,300 per
tree, and an unsigned October 27, 2008 invoice for 25 Canary Island palms at the
same price per tree.
According to
defendant, all the Canary Island palms had been delivered by the date of the
e-mail. Defendant said Action Trees not
only delivered the requested Canary Island palms (35 to 37), an additional tree
was delivered. He later said he paid
Action Trees for all the trees and the question was whether Action Trees delivered
them and was paid. On cross-examination,
defendant conceded he could not say for sure whether the all the trees were
delivered.
The court noted the
testimony of defendant and Reyburn conflicted, but that Reyburn said he needed
43 trees, a figure defendant agreed with.
The court found the agreed upon price for the trees was $7,300 per tree
and that Reyburn received only 12 of the trees, two of which were damaged, and
Reyburn had to turn to another supplier for the remainder of the trees. The court found nothing to support defendant’s
statement that all the trees were delivered.
As a result, the court ordered defendant to pay restitution on counts 15
and 16 in the amount of $169,750. The
court arrived at that figure by adding the amounts Reyburn paid defendant
($13,000 + $140,300 + $29,450) plus the $60,000 Reyburn had to pay to furnish
the trees defendant failed to deliver, less $73,000 for the 10 undamaged trees
that were delivered. The restitution
amount of $169,750 was reduced to $158,500.46 based on a subsequent payment
made by defendant.
II
DISCUSSION
Although
defendant pled guilty to all the charges in this matter, his appeal does not
challenge the validity of his guilty plea.
Consequently, he was not required to obtain a certificate of probable
cause in order to bring his appeal. (
652, 657-658 [appeal of restitution fine imposed after guilty plea does not
affect validity of guilty plea and no certificate of probable cause required].)
The
victims the right to obtain restitution from the person convicted of committing
a crime resulting in a loss to the victim.
(Cal. Const., art. I, § 28, subd. (b)(13).) Section 1202.4 sets forth items for the court
to consider in setting the appropriate amount of restitution in a given case. (§ 1202.4, subd. (f).) “The statute further provides that the trial
court ‘shall order full restitution unless it finds compelling and extraordinary
reasons’ not to do so [citation]; the restitution order must ‘fully reimburse
the victim . . . for every determined economic loss incurred as the result of
the defendant’s criminal conduct, including, but not limited to, all of [12
listed forms of loss]’ [citation].†(
737.) The victim bears the burden of
proving the restitution amount by a preponderance of the evidence. (People
v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.)
We review a
trial court’s restitution order for an abuse of discretion. (People
v. Giordano (2007) 42 Cal.4th 644, 663.)
When there is a rational and factual basis for the amount of restitution
ordered, the court does not abuse its discretion. (People
v. Gemelli, supra, 161 Cal.App.4th
at p. 1542.) “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.†(
The superior court did just that here.
As stated above, the court arrived at the restitution figure by adding
the fees Reyburn paid defendant ($13,000 + $140,300 + $29,450) to the amount
Reyburn had to pay another supplier to obtain the trees defendant failed to
provide ($60,000) less $7,300 for each of the 10 trees defendant did provided
($73,000).
Defendant argues
the superior court lacked an adequate factual basis for awarding restitution in
this matter. We disagree.
The issue of how
many trees were ordered and how many were delivered involved an old-fashioned
swearing contest. We do not second-guess
the trial court’s determination of credibility (People v. McDaniels (1980) 107 Cal.App.3d 898, 903), as the
credibility of witnesses is the “exclusive province†of the trier of fact—here
the trial court (People v. Lee (2011)
51 Cal.4th 620, 632). The court found
the parties agreed on a price of $7,300 per tree and that defendant delivered
10 acceptable trees. The agreed upon
price of $7,300 a tree was supported by a signed invoice, and Reyburn testified
defendant delivered 12 of the trees, two of which were rejected. The sums paid to defendant for the trees was
supported by Reyburn’s testimony and documentary evidence. And the price Reyburn paid another supplier to
furnish the trees defendant failed to deliver was supported by Reyburn’s
testimony, which the court clearly accepted.
Accordingly, we find the amount of restitution ordered by the court was
supported by the evidence and was not the result of an abuse of discretion.
III
DISPOSITION
The judgment is
affirmed.
MOORE,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.
be paid on counts 13 and 14.
