Filed 10/26/20 P. v. Zamudio CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301108
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. SA099969
v.
MICHELLE ZAMUDIO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Upinder S. Kalra, Judge. Affirmed.
A. William Bartz, Jr., under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Attorney General, Idan Ivri and Stephanie C. Santoro, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Michelle Zamudio pled no contest
to false personation (Pen. Code, § 529, subd. (a)(3))1 and was
placed on formal probation after she purchased two bicycles from
a retailer using a fraudulent credit card. The trial court ordered
her to pay $14,048 in victim restitution. (§ 1202.4, subd. (f).) On
appeal, Zamudio argues: (1) the court erred by ordering her to
pay the victim the retail value of the bikes rather than the
wholesale value; and (2) the court erred by ordering her to pay
attorneys’ fees incurred by the victim. We affirm.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed a complaint
charging Zamudio with identity theft (§ 530.5, subd. (a); count
one), grand theft (§ 487, subd. (a); count two), and false
personation (§ 529, subd. (a)(3); count three). Zamudio pled no
contest to count three. The trial court dismissed the remaining
counts, suspended imposition of sentence, and placed Zamudio on
formal probation for three years. Following a hearing, the court
ordered Zamudio to pay $14,048 in victim restitution under
section 1202.4, subdivision (f).
Zamudio timely appealed.
1 All undesignated statutory references are to the Penal
Code.
2
FACTUAL BACKGROUND2
Using a fraudulent credit card, Zamudio purchased two
bicycles online from a bicycle shop, Bike Attack, owned by
Ericson Monsalud. Zamudio went to the store to pick up the
bicycles. Monsalud became distracted and asked Zamudio to wait.
When he returned, the bicycles were gone.
Monsalud testified the retail price of the first bicycle, a
Spitzing, was $7,489 excluding tax. He testified the retail price of
the second bicycle, a BMC Speedfox, was $5,799 excluding tax.
He also requested $760 in attorneys’ fees related to the theft from
his business.
The wholesale price of the Spintzing bicycle was $4,990.80.
Although the record does not state the exact wholesale price of
the BMC Speedfox, Monsalud testified it would have been 80% of
the $5,799 retail value.
The court ordered Zamudio to pay $14,048 in victim
restitution, consisting of $7,489 for the Spitzing bicycle, $5,799
for the BMC Speedfox bicycle, and $760 for attorneys’ fees.3
DISCUSSION
Restitution for the bicycles
Zamudio argues the trial court abused its discretion by
ordering her to pay Monsalud the retail value of the bicycles
2 The following facts were presented at the restitution
hearing.
3 Defense counsel objected to awarding the retail value of the
bicycles and stated she would stipulate to the wholesale value.
She also objected to the attorneys’ fees.
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rather than the wholesale value. The Attorney General argues
the retail value was proper because there was evidence the theft
resulted in lost profits. We agree with the Attorney General.
“In 1982, California voters declared the right of crime
victims to receive restitution directly from those convicted of the
crimes they suffered. Legislative enactments provided that a
crime victim shall receive restitution from the perpetrator.”
(People v. Erickson (2018) 30 Cal.App.5th 243, 245 (Erickson),
citing § 1202.4 and People v. Giordano (2007) 42 Cal.4th 644.)
Subdivision (f) of section 1202.4 states that, subject to certain
exceptions not applicable here, “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 . . . . The court shall order full
restitution.” A defendant is entitled to a restitution hearing to
“dispute the determination of the amount of restitution.”
(§ 1202.4, subd. (f)(1).)
“We review the trial court’s restitution order for abuse of
discretion. [Citation.]” (Erickson, supra, 30 Cal.App.5th at p.
246.) “The court abuses its discretion if its restitution order rests
on a ‘demonstrable error of law.’ [Citation.]” (Ibid.) “While the
court need not order restitution in the precise amount of loss, it
‘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.’ [Citations.]” (People v. Chappelone (2010)
183 Cal.App.4th 1159, 1172-1173 (Chappelone).)
Applying these principles, we conclude the trial court did
not abuse its discretion. In concluding Monsalud was entitled to
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the retail value of the bikes, the trial court relied on Chappelone,
supra, 183 Cal.App.4th at p. 1179, for its observation that “the
victim’s economic loss may include lost revenue or profit [─]
where there is evidence of such loss.” The trial court explained
there was evidence of lost profit here because the property was
never returned to Monsalud. We agree with the trial court’s
analysis. (See People v. Thygesen (1999) 69 Cal.App.4th 988, 994
[restitution amount may “include the loss of revenue the stolen
item would have produced.”].)
Restitution for attorneys’ fees
Zamudio next argues the trial court erred in awarding
Monsalud $760 in attorneys’ fees. Zamudio contends “The hiring
of private counsel was not necessary and therefore an
inappropriate expense for the award of restitution.” We reject
this argument. Monsalud testified he paid the attorney for
services related to the theft. Section 1202.4, subdivision (f)(3)(H)
expressly provides that restitution may include “[a]ctual and
reasonable attorneys’ fees and other costs of collection accrued by
a private entity on behalf of a victim.”
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DISPOSITION
Affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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