Filed 9/11/18 P. v. Tran CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Maureen F. Hallahan and Sharon Majors-Lewis, Judges. Affirmed.

Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

Kevin Tran unlawfully accessed (hacked) 151 student accounts at the University of California San Diego (UCSD) during a two-year period. UCSD undertook an extensive and complex investigation in order to identify the perpetrator and to repair damage caused by his actions. Tran pleaded guilty and on this appeal, he challenges the order requiring him to pay $30,590 to UCSD in restitution. We will find the trial court's restitution order was proper and is supported by substantial evidence. We will therefore affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

From December 2015 to September 2017, Tran hacked into the computer accounts of 151 students at UCSD. Tran accessed the students' e‑mail and social media. In some instances, Tran changed the students' passwords, thus locking them out of their personal accounts.

Tran pleaded guilty to one count of unlawfully accessing a computer and damaging or destroying software (Pen. Code,[1] § 502, subd. (c)(4); count 1). Tran was granted probation subject to various conditions, including an order to pay restitution to UCSD for their investigation and repair costs in the amount of $30,590.

DISCUSSION

This appeal challenges the restitution order, claiming it is not supported by substantial evidence thus denying him due process. We will find the order is supported by substantial evidence and that Tran's due process rights were fully protected.

A. Background

The court conducted a noticed, contested hearing on the issue of restitution. The People's brief includes an accurate summary of the testimony at the hearing, which we incorporate here.

At the contested restitution hearing, the prosecutor presented the testimony of Michael Corn, the chief information security officer for UCSD. Mr. Corn testified that the university conducted a complex investigation to determine appellant's identity. In general, Mr. Corn explained that he asked each university employee involved in the investigation to track the hours spent on it, and to report those hours to him. Mr. Corn then sent the list of employees and their accompanying estimates of their hours worked on this investigation to the university's business office. Mr. Corn asked the business office to calculate the total expense by multiplying each employee's hours by their billing rate, and adding up the amounts for all of the reporting individuals. The business office reported to Mr. Corn that, based on their calculations, the total cost to the university was $30,590.

Mr. Corn also explained that UCSD's restitution request was a "very conservative estimate" limited to the expense to the university for the "core" employees who worked on this investigation, but did not seek restitution for all time dedicated by all employees to this matter. In addition, the university incurred at least one additional cost not included in the restitution request—the university paid for credit monitoring for any victim who opted to receive the service.

Through cross-examination, defense counsel sought to demonstrate that the hours worked by UCSD staff were part of their normal job functions, and thus included in their normal pay. Thus, the university was not required to pay anything above and beyond what it would have paid in terms of normal compensation for the employees. In addition, defense counsel argued that the number of hours reported was arbitrary, because it was based on employees self-reporting alone, and had not been verified by supervisors, etc.

At the conclusion of the hearing, the trial court indicated it was concerned because there was no evidence regarding each employee's hourly wage, but in light of the amount of harm caused by appellant, and because Mr. Corn indicated the estimate was conservative and did not take into account every employee's hours worked or every expense incurred by the university, the trial court held that the amount requested was reasonable, and ordered appellant to pay $30,590 to UCSD in restitution.

B. Legal Principles

The California Constitution mandates restitution for victims of crime. (Cal. Const., art. I, § 28, subd. (b).) The Legislature has implemented the mandate in section 1202.4. (People v. Giordano (2007) 42 Cal.4th 644, 655.)

When we review a trial court's restitution order we apply the abuse of discretion standard of review. We will not reverse such decision in the absence of a clear showing of an abuse of the court's discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) We will uphold a court's decision on restitution where the record shows the determination of economic loss is a reasonable, nonarbitrary result. (People v. Giordano, supra, 42 Cal.4th at p. 665.)

Restitution hearings under section 1202.4 do not require any particular type of evidence. The court is required to order restitution in the "amount of loss claimed by the victim or victims or any other showing to the court." (§ 1202.4, subd. (f).) A victim may estimate the amount of loss if the exact amount is difficult to calculate. (People v. Goulart (1990) 224 Cal.App.3d 71, 83.) Where the victim makes a prima facie showing of economic losses which were caused by the defendant's criminal behavior, the burden shifts to the defendant to disprove the amounts claimed. (People v. Fulton (2003) 109 Cal.App.4th 876, 886.) Absent a challenge by the defendant, an award of an amount specified in a probation report would not be an abuse of discretion. (People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407.)

Where the victim seeks restitution, due process requires that the defendant receive notice of the requested amount and is provided the opportunity for a hearing at which the defendant may challenge the requested amount. (People v. Baumann (1985) 176 Cal.App.3d 67, 79-80.) In the present case, Tran was given notice of the requested amount on January 10, 2018, and the hearing was held on January 31, 2018.

In People v. Vournazos (1988) 198 Cal.App.3d 948 (Vournazos), relied upon by Tran, the court dealt with claimed losses as expressed in the probation officer's report. On appeal, the court held that the burden of proof did not shift to the defendant because the uncorroborated statements of the victim in that case did not amount to substantial evidence. (Id. at pp. 958-959.) Division Two of this court has previously rejected the reasoning of Vournazos in People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.

C. Analysis

In this case there is sufficient substantial evidence in the record to support the trial court's decision. UCSD "conservatively" identified 362.5 hours worked by various staff members to investigate and correct the damage arising from Tran's extensive hacking of student accounts. The hours identified were then sent to the business office, which calculated the cost, at the hourly rate for each staff member. The amount calculated by this process was $30,590. Tran did not put on any testimony challenging either the hours "conservatively" identified, or the hourly rate calculation. Plainly, UCSD established a basis for restitution and the burden shifted to Tran to challenge the amount or the manner of its calculation.

We join our colleagues in Division Two in finding Vournazos, supra, 198 Cal.App.3d 948 to be unpersuasive. The court in Gemelli said: "In other words, to the extent Vournazos might be read to require more than a victim's statement of loss in a probation officer's recommendation as prima facie evidence of value to determine an appropriate amount of restitution, we decline to follow it." (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.)

Tran received notice of the requested amount and received a full hearing on the reasonableness of such request. The university provided testimony, which was accepted by the trial court as "conservative." Given the relaxed standard for the presentation of evidence at such hearings and Tran's failure to present any evidence to show the manner of calculation was unreasonable, the trial court was well within its discretion to accept the university's evidence as reliable. The court did not err in setting the amount of the restitution order.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.