P. v. Culp
Filed 3/20/07 P. v. Culp CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. JANICE CULP, Defendant and Appellant. | D047768 (Super. Ct. No. 187280) |
APPEAL from a judgment of the Superior Court of San Diego County, George W. Clarke, Judge. Affirmed as modified.
Janice Culp pleaded no contest to theft from an elder (Pen. Code,[1] 368, subd. (d)) and diversion of construction funds ( 487, subd. (a)). The court granted Culp probation on specific terms and conditions. Culp was also ordered to pay the victims direct restitution. Culp appeals, challenging the amount ordered to be paid in restitution
as to three of the victims -- Harriet Williams, Eugene Dent, and Rose and Emil Krejci. We modify the amount of restitution to the Krejcis by reducing it to $29,611 and affirm the judgment in all other respects.
FACTS
Culp was the president and chief executive officer of Lifetime Home Improvement Specialties (Lifetime). The company accepted money from clients for contractor work that was not performed or that was not performed to acceptable specifications.
On November 18, 2002, Rose and Emil Krejci signed a contract with Lifetime to remodel their kitchen and two bathrooms, at a cost of $31,323. The Krejcis paid Lifetime $29,611. The project was abandoned and never completed by Lifetime. An investigator from the Contractor Licensing Board (CLB) evaluated Lifetime's work and estimated the cost to repair and complete the work was $21,945. The investigator also estimated the value of the work performed by Lifetime at $655.
On January 18, 2003, Harriet Williams signed a contract with Lifetime to recover her patio, replace her kitchen counter, remodel bathrooms and replace windows in her home. Williams paid Lifetime $26,064. Lifetime began work on the bathrooms and the patio but never completed the work. An investigator from the CLB evaluated Lifetime's work and estimated the cost to correct and complete the work performed was $28,600. The patio cover was leaking, support beams were deficient, painting was incomplete and electrical wires were left exposed. Williams contracted with Larson Construction (Larson) to correct and complete the work which Lifetime failed to perform. Larson replaced the patio cover Lifetime had constructed with a wooden roof and installed new windows which Lifetime had failed to install.
On March 19, 2003, Eugene Dent signed a contract with Lifetime to remodel his kitchen for $10,441. Dent paid Lifetime $6,400. Lifetime removed kitchen appliances, doors and drawers, and then abandoned the project. Dent hired another contactor to correct and complete the project for $8,484.38. Dent's credit card company reimbursed him for $6,400.
At the restitution hearing, the trial court ordered Culp to pay Williams $28,677, Dent $6,400 and the Krejcis $30,266 in direct restitution.
DISCUSSION
Culp contends the court erred in ordering her to pay restitution to the victims in an amount that has no factual or rational basis. She asserts the amounts ordered were in excess of the determined economic losses incurred by Williams, Dent and the Krejcis.
I
LEGAL PRINCIPLES AND STANDARD OF REVIEW
Restitution to victims is mandatory, although the court retains discretion as to the amount. (People v. Akins (2005) 128 Cal.App.4th 1376, 1387.) Section 1202.4, subdivision (f) provides in part: "In every case in which a victim has suffered an economic loss as a result of the defendant's conduct, the court shall require that a defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court."
The trial court must "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." (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) The trial court is given virtually unlimited discretion regarding the information it considers and the source of that information because the restitution hearing " 'does not require the formalities of other phases of a criminal prosecution.' " (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) " 'The terms and conditions set by the trial court for victim restitution will not be overturned unless the trial court abused its discretion. "Restitution as a condition of probation is favored by public policy both as a means of doing justice to the victim [citation], and for rehabilitation of the offender [citations] . . . . Where there is a factual and rational basis for the amount of restitution set, no abuse of discretion will be found by the reviewing court." ' " (People v. Balestra (1999) 76 Cal.App.4th 57, 63, quoting People v. Whisenand (1995) 37 Cal.App.4th 1383, 1391.) There is no abuse of discretion simply because the order does not reflect the exact amount of the loss or reflect the amount of damages recoverable in a civil action. (People v. Akins, supra, 128 Cal.App.4th at p. 1382.)
II
RESTITUTION ORDER TO WILLIAMS
The trial court ordered Culp to pay restitution of $28,677 to Williams, stating Williams "is entitled to more than she paid, because it was necessary to spend the higher amount to get her house done right after what defendant did to Williams' house." Culp contends the restitution order must be reduced because the amount includes restitution for construction of a patio of a higher quality than the patio for which Williams had originally contracted. She asserts Williams contracted with Lifetime to install a patio cover made of a plastic or acetate material, but after Lifetime abandoned the project, Williams received a wooden roof that is of higher value than the patio cover. Culp further claims the trial court abused its discretion for ordering restitution for replacement windows in Williams's home in excess of the amount Williams paid Lifetime. Because Lifetime accepted payment from Williams for the replacement of windows which never were replaced by Lifetime, Culp argues there is no rational basis for requiring Lifetime to pay restitution in the amount it cost Williams to eventually replace the windows.
Section 1202.4, subdivision (f)(3) provides, in part, that 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." There is ample evidence in the record to support the trial court's finding Williams was required to spend more money in order to rectify the results of Culp's criminal conduct. Williams testified the state investigator declared the work performed by Lifetime to be substandard and necessitated another contractor to redo much of the work Lifetime completed. The court found that "[w]hat [Lifetime] did was unacceptable and below standard. The new contractor had to clean up what [Lifetime] did and then do it right." Lifetime "put some money and time into these things, but it was worthless . . . and required [the victims] to go get somebody else to fix them. [] . . . [] These people have been left worse off than before [Lifetime] ever began."
The only evidence that supports Culp's contention that Williams's patio was of a higher quality than the patio Williams had paid Lifetime to construct is Culp's own testimony at the restitution hearing. The court questioned Culp's credibility, finding "[s]he showed absolutely no remorse. She has excuses and rationalizations, but she has refused to accept responsibility for this, and that was not impressive."
"There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Because Lifetime abandoned the project, Williams had to pay more to complete the construction, including replacing the patio cover and installing windows. The trial court determined the restitution ordered to Williams was the amount calculated to make her whole. The trial court's award has a rational basis and thus was within its discretion.
III
RESTITUTION ORDER TO DENT
The trial court ordered Culp to pay restitution of $6,400 to Dent, which was full reimbursement of Dent's payment to Lifetime. Culp contends the restitution order must be reduced because Lifetime completed five percent of the project.
At sentencing, Culp failed to object to the restitution order. "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.) This waiver principle applies to restitution orders. (People v. O'Neal (2004) 122 Cal.App.4th 817, 820.) By failing to object to Dent's restitution, Culp has waived appellate review.
In any event, the restitution order was proper. Culp relies on a statement attached to the probation report, which provides "[a]ll drawers [and] doors gone [and] cabinets stripped to base frames. Quality of little work done was shoddy. About 5% of job was done." However, the trial court rejected the argument that the minimal amount of work performed by Lifetime conferred value on Dent's home. Given the quality of the work performed by Lifetime, there is ample justification in the record to support the trial court's restitution order.
IV
RESTITUTION ORDER TO THE KREJCIS
The trial court ordered Culp to pay restitution of $30,266 to the Krejcis, which was "$29,611 plus the $655 negative based on what the state represented to us." Culp argues the restitution order must be reduced by $655 because the trial court mistakenly included that amount in the total restitution order.
Contrary to the People's assertion, Culp did not waive her claim of error as to the Krejcis' restitution by not raising it at sentencing. A defendant must object to the amount of restitution requested during the sentencing hearing if he or she wishes to preserve the issue on appeal. (People v. O'Neal, supra, 122 Cal.App.4th at p. 820.) Culp asserts she did not intentionally waive her right to contest the amount of restitution. Culp's failure to object was based on a representation contrary to the evidence. The People represented to the trial court that the state investigator estimated the work performed by Lifetime resulted in a negative $655 value to the Krejcis' home. The trial court relied on the People's representation and ordered restitution in an amount to reimburse the Krejcis for the negative $655 value. The state investigator's report states there is "a net value of $655.00" for the work performed by Lifetime. This misunderstanding precluded Culp from disputing the amount of the Krejcis' loss at the restitution hearing. Because Culp was not afforded a meaningful opportunity to dispute the amount of restitution (People v. Resendez (1993) 12 Cal.App.4th 98, 112-114), Culp did not waive the issue on appeal. The restitution order as to the Krejcis must be reduced by $655, for a total of $29,611.
DISPOSITION
The restitution order to the Krejcis in the amount of $30,266 is modified by reducing the order to $29,611 and the matter is remanded with directions for the superior court to modify the probation order in accordance with the views expressed in this opinion. In all other respects the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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[1]Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
