Filed 9/4/15 P. v. Avila-Castro CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B256978
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA102377)
v.
DIANA LISETH AVILA-CASTRO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Mike Camacho, Judge. Affirmed.
Cynthia L. Barnes for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael C. Keller and Rene
Judkiewicz, Deputy Attorneys General, for Petitioner and Respondent.
_____________________
INTRODUCTION
Defendant and Appellant Diana L. Castro appeals from the trial court’s judgment
ordering Defendant to pay restitution in the amount of $417,663.95 to the victims of her
grand theft by embezzlement, to which she pleaded no contest. Defendant asserts that the
court abused its discretion in making the restitution order because the amount awarded
was in part based on speculation. Defendant asserts that the State failed to prove with
sufficient evidence that certain losses were caused by Defendant’s criminal conduct. We
affirm because substantial evidence in the form of victim testimony supported the court’s
restitution order.
FACTS AND PROCEDURAL BACKGROUND
From 2008 to May 2013, Defendant worked as the accounting manager for N.C.
Star, Inc., a business owned by Carson Cheng that imported sporting goods from China
into the United States. Defendant had access to N.C. Star’s business accounts, and
utilized N.C. Star’s credit cards to make purchases for her personal benefit without
authorization from N.C. Star or Cheng. Cheng discovered Defendant’s embezzlement in
May 2013. Defendant pleaded no contest to two counts of grand theft by embezzlement
under Penal Code1 section 487, subdivision (a), and admitted that in the commission of
the theft, she took property of a value exceeding $200,000 within the meaning of section
12022.6, subdivision (a)(2).
At the restitution hearing, Cheng testified about Defendant’s role in managing the
company’s finances and her access to the company’s credit cards. Cheng testified how
he discovered many unauthorized charges on several company credit cards, determined
that they were made by Defendant for her personal use, and fired Defendant. Cheng
testified that the unauthorized charges by Defendant totaled $417,663.95. This number
comprised of $133,839.18 in online postage purchases on postagestamps.com,
$35,185.75 in purchases on gift card exchange websites, $53,366.86 in PayPal purchases,
1
All subsequent statutory references are to the Penal Code, unless otherwise
indicated.
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and $195,272.16 in other online purchases. Cheng based his calculations on his review
of the credit card accounts, his notes, his authorizations, and his discussions with
company managers who held company credit cards in their name. Many of the purchases
were made on Capital One and Bank of America company-issued credit cards that were
under the names of several managing employees, and on Cheng’s Costco credit card.
Cheng testified that when he confronted Defendant, she admitted that she stole from the
company and told him that she “saw the opportunity.” Defendant then offered to pay
Cheng $300,000 so that Cheng would not press charges.
In response, Defendant testified that although she made purchases on one
particular employee’s credit card, she did not recall making purchases using other
employees’ credit cards. Defendant denied using her employee credit card for personal
purposes and denied accessing other employees’ cards. Defendant also denied having
access to the company account to make the online postage purchases, and denied sending
any packages for her personal gain or use. Defendant admitted that she told Cheng she
was responsible for a certain amount of damages, opined that she was never given the
chance to compute the damages, and asserted that she was only responsible for a portion
of the damages claimed by Cheng. Defendant admitted that she had made online
purchases but did not keep a record of her spending.
The court evaluated the testimony and stated that Cheng did his best to itemize the
amounts stolen by Defendant and provide the court with the amount of the company’s
loss. In contrast, the court noted that Defendant “was unable in her own testimony to
even give the court an estimate as to the amount of money that she took from N.C. Star.
[Defendant] wouldn’t even render a guess, simply just said, I don’t know.” The court
explained that it was concerned that “[i]f [Defendant] doesn’t know how much money
she took from N.C. Star, how can she tell us that these amounts are not accurate?” The
court subsequently found that the amount of losses provided by N.C. Star and Cheng
were accurate. The court then sentenced Defendant to three years, four months in county
jail, and ordered Defendant to pay $417,663.95 to N.C. Star and Cheng.
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DISCUSSION
The sole issue on appeal is whether the amount of restitution ordered by the court
was supported by substantial evidence. “In reviewing the sufficiency of the evidence [to
support a factual finding], the ‘ “power of the appellate court begins and ends with a
determination as to whether there is any substantial evidence, contradicted or
uncontradicted,” to support the trial court’s findings.’ [Citations.] Further, the standard
of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a
reasonable doubt. [Citation.] ‘If the circumstances reasonably justify the [trial court’s]
findings,’ the judgment may not be overturned when the circumstances might also
reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the
evidence; rather, we determine whether there is sufficient evidence to support the
inference drawn by the trier of fact. [Citations.]” (People v. Baker (2005)
126 Cal.App.4th 463 468–469.) “ ‘When there is a factual and rational basis for the
amount of restitution ordered by the trial court, no abuse of discretion will be found by
the reviewing court.’ ” (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)
Pursuant to Penal Code section 1202.4, subdivision (f), “in every case in which a
victim has suffered economic loss as a result of the defendant’s conduct, the court shall
require that the 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 victims
or any other showing to the court.” “Once the victim has made a prima facie showing of
his or her loss, the burden shifts to the defendant to demonstrate that the amount of the
loss is other than that claimed by the victim.” (People v. Prosser (2007) 157 Cal.App.4th
682, 691.)
Here, Defendant asserts that the State did not establish by sufficient evidence that
the unauthorized charges appearing on fellow employees’ Capital One credit cards and
the charges made online at postagestamps.com were the result of Defendant’s criminal
behavior. Defendant argues that “[t]he victim’s surmise and speculation that [Defendant]
was somehow the cause and responsible for these charges and purchases should not have
been a substitute for the required amount of evidentiary proof.”
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We disagree as substantial evidence supports the court’s findings. In regard to the
Capital One credit card purchases, Cheng testified that he provided Defendant with one
of the several Capital One credit cards on the company’s account issued to N.C. Star
managers. Employees were authorized to use Capital One credit cards solely for
company travel-related expenses. Cheng testified that without his knowledge, Defendant
made herself an administrator of the company’s Capital One account. As an account
administrator, Defendant was the only person, other than Cheng, who had access to each
employee’s credit card number. Cheng explained that Defendant used other employees’
credit card numbers to make unauthorized online purchases for her own personal benefit.
Cheng identified the charges that were attributable to Defendant by reviewing his own
notes regarding charges he authorized and discussing the charges with each employee
who was issued a card.
As to the postagestamps.com purchases, Cheng determined that these were
unauthorized because his company shipped merchandise primarily via UPS, averaging
between $7,000 to $10,000 per week in UPS charges. He testified that the company
infrequently used the United States Postal Service, averaging only $400 to $500 in
postage per month. Cheng personally knew this amount because 80 to 90 percent of the
time, he and his warehouse manager personally delivered the packages to the post office.
Cheng testified that in reviewing the bills, he saw that Defendant had purchased
anywhere from $100 to $500 in a single day in postage, and the amounts of postage billed
went well above the $400 to $500 authorized amount. Cheng calculated the online
postage charges attributable to Defendant’s unauthorized purchases by adding up the
postage charges over the authorized $400 to $500 monthly postage. Cheng stated that
Defendant never had authority to make any postage purchase online or otherwise.
We conclude that Cheng’s testimony and accounting of Defendant’s unauthorized
expenditures as to the Capital One credit cards and the online postage purchases
constitutes substantial evidence supporting the court’s restitution order. “Section 1202.4
does not, by its terms, require any particular kind of proof.” (People v. Gemelli (2008)
161 Cal.App.4th 1539, 1542-1543 [The probation officer’s report with a handwritten
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statement from the victim listing the grand total losses was sufficient to make a prima
facie showing of the victim’s loss.].) A victim’s uncorroborated statement of losses is
sufficient to make a prima facie showing of his or her loss. (Ibid.) “ ‘This is so because a
hearing to establish the amount of restitution does not require the formalities of other
phases of a criminal prosecution.’ ” (People v. Keichler (2005) 129 Cal.App.4th 1039,
1048.) Here, Cheng’s testimony, which set forth his company’s losses caused by
Defendant’s theft and his method for assessing Defendant’s unauthorized purchases,
made a prima facie showing of N.C. Star’s losses.
Because the State met its burden in making a prima facie case, the burden shifted
to Defendant to show that the amount of the loss was less than that claimed by N.C. Star.
As the court pointed out, Defendant could not tell the court how much she embezzled,
and simply denied making purchases for online postage and using particular employee’s
credit cards. This is not sufficient to rebut the State’s prima facie case regarding the
victim’s losses. As the court explained, “It would be different if [Defendant] would have
said through sworn testimony that I remember taking this amount, this amount and this
amount, and this is how much I had at the end of the day regardless of how I used those
funds, and it’s different from what Mr. [Cheng] is claiming... [But Defendant]’s not able
to do that because she just simply didn’t track how much money was taken.” We agree
that the Defendant failed to meet her burden below.
Based on the foregoing, we conclude that substantial evidence supports the trial
court’s restitution order. We therefore affirm.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
I concur:
EDMON, P. J.
ALDRICH, J.
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