People v. Wolfe CA2/2

Filed 3/12/21 P. v. Wolfe CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B305833

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA425130)
v.

ERIC JONATHAN WOLFE,

Defendant;

BRAD WOLFE, as Special
Administrator, etc.,

Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. William C. Ryan, Judge. Affirmed.
Michael Evan Beckman for Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen and Paul M.
Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and
Respondent.
 The special administrator of the Estate of Eric Jonathan
Wolfe, as successor in interest to defendant Eric Jonathan
Wolfe,1 appeals portions of the superior court’s March 9, 2020
restitution order.
From 2007 to 2013, appellant and his codefendants
engaged in a predatory real estate and mortgage fraud scheme
through which they acquired properties from homeowners in
financial distress by falsely promising to assist the homeowners
with short sales or loan modifications. As part of a fake loan
modification or short sale process, appellant would forge or have
the homeowners sign grant deeds conveying the properties to one
of appellant’s many companies operating under various names.
Unbeknownst to the homeowners, appellant would later alter the
deeds to indicate the properties had been conveyed as gifts.
After appellant wrongfully acquired the properties from the
homeowners, payments on the mortgages for those properties
would cease, and appellant would rent out or sell the properties,
pocketing the proceeds. In some instances, appellant paid the
lending institutions less than the amounts outstanding on the
mortgages based on fraudulent below-market valuations and
then sold the properties at a profit. On other occasions, when the
lending institutions attempted to foreclose on the properties,
appellant would seek to prevent or delay foreclosure in order to

1Wolfe died on February 11, 2018, while serving his 16-
year 8-month prison sentence. His brother was appointed special
administrator to the estate in Los Angeles County Superior Court
probate case No. 18STPB06847 and given the power to retain an
attorney and act on behalf of the estate at the restitution hearing.
We refer to Wolfe and the special administrator interchangeably
herein as appellant.

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extract more rents by submitting fictitious offers and/or by filing
fraudulent lawsuits and lis pendens on the properties.
On June 25, 2014, the Los Angeles County Grand Jury
returned a 118-count indictment against appellant and 10
codefendants,2 charging them in connection with the scheme
under Penal Code3 sections 182, subdivision (a), 487,
subdivision (a), 115, subdivision (a), and 532f, as well as failing to
file and filing false state tax returns.
On June 26, 2015, appellant pleaded guilty to 22 of the 118
counts in the indictment. Specifically, appellant pleaded guilty to
one count of conspiracy to commit grand theft of personal
property as charged in count 1 (Pen. Code, §§ 182, subd. (a), 487,
subd. (a)), ten counts of grand theft of personal property (Pen.
Code, § 487, subd. (a); counts 3, 16, 33, 40, 44, 53, 54, 65, 96, and
105), four counts of procuring or offering a false instrument (Pen.
Code, § 115, subd. (a); counts 12, 28, 75, and 83), one count of
forgery (Pen. Code, § 475, subd. (a); count 15), two counts of
mortgage fraud (Pen. Code, § 532f, subd. (a)(1); counts 50 and
88), one count of filing a false tax return (Rev. & Tax. Code,
§ 19705, subd. (a); count 110), and three counts of failing to file a
tax return (Rev. & Tax. Code, § 19706; counts 111, 112, and 113).
Appellant also admitted an aggravated white collar special
allegation under Penal Code section 186.11, subdivision (a)(2) as
to counts 1, 3, 13, 16, 33, 40, 44, 53, 54, 65, 96, and 105, as well as
the special allegation that the loss exceeded $200,000 (Pen. Code,
former § 12022.6, subd. (a)(2)), based on the total amount of the
theft. The remaining counts of the indictment were dismissed.

2 The codefendants are not parties to this appeal.
3 Undesignated statutory references are to the Penal Code.

3
 Appellant was sentenced to 16 years 8 months in state
prison. A restitution hearing was deferred until after the case
was resolved against all defendants.4
The restitution hearing took place over five days in June,
September, and December 2019. The prosecution presented 121
exhibits in support of its restitution claims, including two
exhibits (People’s exhibits 97 & 98) setting forth the losses and
calculations of those losses as to each property, and called Special
Agent Thomas Donohue and Investigative Auditor Hengru
Connie Chen to testify. Several individuals gave victim impact
statements. No witnesses testified on behalf of the special
administrator.
The trial court issued a detailed memorandum of decision
on March 9, 2020, awarding restitution to several lending
institutions, two estates, and various individuals, as well as

4 Prior to any restitution hearing, appellant filed notice of
appeal without obtaining a certificate of probable cause. We
ordered the appeal limited to issues that would not require a
certificate of probable cause. (People v. Wolfe (Oct. 2, 2017,
B285315).) Appellant died while the appeal was pending, and on
May 4, 2018, we granted the People’s motion to dismiss and
partially abate the proceedings, but ordered that the criminal
conviction “remain[ ] in force and effect to the extent necessary
for the trial court to enter and enforce orders with respect to
restitution and the receivership. Restitution orders and the
receivership are not abated.” (See [as of Mar. 1, 2021],
archived at .)

4
interest on the stipulated amount owed to the Franchise Tax
Board. Asserting many of the same arguments raised below,
appellant challenges the restitution awarded to the Estates of
Jean Ablott ($208,777.03) and Lyle Gilmor Skarsten
($231,636.91) (the Estates), the lending institutions⎯Fannie Mae
($48,248.45 and $44,584.16), Bank of America ($54,250, $66,300,
$34,535, $67,496, and $99,472.50), GMAC Mortgage ($16,250 and
$43,750), JP Morgan Chase ($54,250), IndyMac/One West Bank5
($36,050), and Wells Fargo Bank ($62,546.42) (collectively the
Lending Institutions)⎯and Guillermo Cilia ($112,117).
Appellant also contests the award of interest to the Franchise
Tax Board.
DISCUSSION
I. The Superior Court Properly Exercised Its
Discretion in Awarding Restitution to the
Estates, the Lending Institutions, and
Guillermo Cilia
A. Relevant legal principles
Passed by the voters in 1982, Proposition 8 “established the
right of crime victims to receive restitution directly ‘from the
persons convicted of the crimes for losses they suffer.’ (Cal.
Const., art. I, § 28, subd. (b).) The initiative added article I,
section 28, subdivision (b) to the California Constitution: ‘It is
the unequivocal intention of the People of the State of California
that all persons who suffer losses as a result of criminal activity

5After IndyMac failed in 2008, the bulk of its assets were
acquired by One West Bank. In its memorandum of decision, the
superior court referred to the lender as “IndyMac/One West
Bank,” a designation we adopt.

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shall have the right to restitution from the persons convicted of
the crimes for losses they suffer. [¶] Restitution shall be ordered
from the convicted persons in every case, regardless of the
sentence or disposition imposed, in which a crime victim suffers a
loss, unless compelling and extraordinary reasons exist to the
contrary.’ ” (People v. Giordano (2007) 42 Cal.4th 644, 652
(Giordano).)
Section 1202.4 represents the Legislature’s implementation
of Proposition 8’s broad constitutional mandate. (People v.
Stanley (2012) 54 Cal.4th 734, 736 (Stanley).) The statute begins
with a declaration of the Legislature’s intent “that a victim of
crime who incurs an economic loss as a result of the commission
of a crime shall receive restitution directly from a defendant
convicted of that crime.” (§ 1202.4, subd. (a)(1); Giordano, supra,
42 Cal.4th at p. 656.) Section 1202.4, subdivision (f) provides
that “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.” (Italics added; Stanley, at p. 737.) The statute further
requires that the restitution award “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.” (§ 1202.4, subd. (f)(3), italics
added; Stanley, at p. 737; Giordano, at p. 656.) Finally, “the trial
court ‘shall order full restitution unless it finds compelling and
extraordinary reasons’ not to do so.” (Stanley, at p. 737, italics
added, quoting former § 1202.4, subd. (f); see also Giordano, at
p. 656, quoting former § 1202.4, subd. (g).)

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 Section 1202.4’s mandate that the restitution order
reimburse the victim to the extent that the victim’s economic loss
occurs “as a result of” the defendant’s criminal conduct requires a
showing of direct causation. (§ 1202.4, subds. (a) & (f); In re S.E.
(2020) 46 Cal.App.5th 795, 803; People v. Jones (2010) 187
Cal.App.4th 418, 425.) California courts have adopted the
“substantial factor” test in analyzing whether a victim’s economic
loss results from the defendant’s criminal conduct for purposes of
mandatory victim restitution. (People v. Lockwood (2013) 214
Cal.App.4th 91, 102; People v. Holmberg (2011) 195 Cal.App.4th
1310.) That standard is relatively broad, requiring only that the
defendant’s criminal conduct be more than a negligible or
theoretical cause of the injury to the victim. (Holmberg, at
p. 1321.) “ ‘Thus, “a force which plays only an ‘infinitesimal’ or
‘theoretical’ part in bringing about injury, damage, or loss is not a
substantial factor” [citation], but a very minor force that does
cause harm is a substantial factor.’ ” (Id. at p. 1322, quoting
Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.)
A “victim” is any individual or entity who has suffered
economic loss as a result of the commission of a crime of which
the defendant was convicted, including a “corporation, business
trust, estate, trust, partnership, association, joint venture,
government, governmental subdivision, agency, or
instrumentality, or any other legal or commercial entity when
that entity is a direct victim of a crime.” (§ 1202.4, subds. (k)(2),
(a)(1), (f)(3); People v. Martinez (2005) 36 Cal.4th 384, 393; People
v. Crow (1993) 6 Cal.4th 952, 957 [a “ ‘victim’ ” is a “ ‘person who
is the object of a crime,’ ” and may include an entity that is not a
natural person].) Further, “[w]hen the actual victim of a crime
has died, the estate, acting in the decedent’s stead, steps into the

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decedent’s shoes to collect restitution owed to the decedent, but
which the decedent cannot personally receive because of his or
her death. Thus, a decedent’s estate—or, more precisely, its
executor or administrator as the decedent’s personal
representative—is a proper recipient, on the decedent’s behalf, of
restitution owed to the decedent, as an actual and immediate
crime victim, for economic losses the decedent incurred as a
result of the defendant’s offenses against the decedent.” (People
v. Runyan (2012) 54 Cal.4th 849, 857 [nothing in the language of
§ 1202.4, subd. (f) suggests a defendant is absolved of
responsibility to pay restitution for the economic loss a victim
personally incurred as a result of the crime if the victim has
died].)
Section 1202.4 requires that a defendant make restitution
to all victims who have suffered economic loss as a result of the
defendant’s criminal conduct, regardless of whether the victims
were named in the charging document. (People v. Walker (2014)
231 Cal.App.4th 1270, 1276 (Walker) [§ 1202.4 imposes no
obligation to name victims, “and judicially imposing such a duty
would make a victim’s entitlement to restitution turn on the
happenstance of whether the prosecutor located or named that
victim before the defendant pled or was convicted”].)
In addition, even absent a victim’s claim for restitution, the
prosecution has authority to seek restitution on the victim’s
behalf. (People v. Selivanov (2016) 5 Cal.App.5th 726, 784
(Selivanov) [§ 1202.4 is “devoid of any language limiting the class
of compensable victims to those who affirmatively request
restitution”].) Article I, section 28, subdivision (b)(13)(A) of the
California Constitution states unequivocally that every victim
who suffers a loss arising from the crime of which the defendant

8
was convicted is entitled to restitution from the defendant. “ ‘The
only qualification is that the loss must be ‘the result of [the
defendant’s] criminal activity.’ ” (Selivanov, at p. 784, italics
added.) As the court in Selivanov explained, section 1202.4,
subdivision (f) “uses disjunctive language to indicate that the
amount of restitution may be based either on the ‘amount of loss
claimed by the victim or victims’ or ‘any other showing to the
court,’ suggesting that a claim by the victim is not . . . a ‘primary
predicate condition’ for the issuance of a restitution order.” (Id.
at p. 785.) “Instead, ‘someone,’ such as the People, may initiate
the restitution process on behalf of a victim.”6 (Ibid.)

6 Moreover, particularly where the defendant has entered
into a plea agreement, the state has its own interest in securing
restitution on behalf of any victims of the defendant’s criminality.
(People v. Runyan, supra, 54 Cal.4th at p. 865 [“the requirement
that a convicted criminal defendant pay restitution for the losses
caused by his crime has aims beyond strict compensation that
include deterrence and rehabilitation”].) For example, as one
court has explained, “While a settlement agreement with, and
release of, a defendant’s insurance company may reflect a victim’s
willingness to accept the amount paid in full satisfaction for all
civil liability, it does not reflect the willingness of the People to
accept that sum in satisfaction of the defendant’s rehabilitative
and deterrent debt to society. A restitution order pursuant to a
defendant’s plea is an agreement between the defendant and the
state. [Citation.] The victim is not party to the agreement, and a
release by the victim cannot act to release a defendant from his
financial debt to the state any more than it could terminate his
prison sentence.” (People v. Bernal (2002) 101 Cal.App.4th 155,
162 (Bernal).)

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 A restitution hearing is not a civil trial, but a criminal
sentencing hearing which lacks the formality of a trial. (People v.
Smith (2011) 198 Cal.App.4th 415, 434.) “ ‘[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 (Keichler); People v.
Kelly (2020) 59 Cal.App.5th 1172, 1181 (Kelly).) The defendant is
not entitled to a jury, and “ ‘[i]n determining the propriety and
amount of restitution, the preponderance of the evidence
standard satisfies due process.’ ” (Smith, at p. 433.) Indeed,
“[s]ection 1202.4 does not, by its terms, require any particular
kind of proof.” (People v. Gemelli (2008) 161 Cal.App.4th 1539,
1542–1543 (Gemelli).)
“ ‘ “ ‘[S]entencing judges are given virtually unlimited
discretion as to the kind of information they can consider’ ” ’ in
determining victim restitution.” (People v. Phu (2009) 179
Cal.App.4th 280, 283 (Phu).) “[T]he standard of evidence at a
restitution hearing does not necessarily require a crime victim to
produce detailed billing records, receipts, or business invoices.”
(Kelly, supra, 59 Cal.App.5th at p. 1183; Gemelli, supra, 161
Cal.App.4th at p. 1542.) Further, a trial court may rely on
hearsay documents in determining victim restitution. (§ 1203.1d,
subd. (d) [“Documentary evidence, such as bills, receipts, repair
estimates, insurance payment statements, payroll stubs, business
records, and similar documents relevant to the value of the stolen
or damaged property, medical expenses, and wages and profits
lost shall not be excluded as hearsay evidence”].)
The statutory provisions implementing a victim’s
constitutional right to restitution are to be broadly and liberally
construed. (Stanley, supra, 54 Cal.4th at p. 737; People v. Nichols

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(2017) 8 Cal.App.5th 330, 342 (Nichols).) We review a challenge
to the amount of victim restitution for abuse of discretion, and
will not reverse the award unless it is arbitrary or capricious.
(Kelly, supra, 59 Cal.App.5th at p. 1181; In re S.E., supra, 46
Cal.App.5th at p. 803.) The trial court “ ‘may use any rational
method of fixing the amount of restitution as long as it is
reasonably calculated to make the victim whole’ ” (Nichols, at
p. 342), and when a factual and rational basis exists for the
restitution order, no abuse of discretion will be found by the
reviewing court (Giordano, supra, 42 Cal.4th at pp. 663–664
[under this standard, the trial court is required only to “employ a
method that is rationally designed to determine the . . . victim’s
economic loss”]).
Finally, “the People carry the initial burden of
demonstrating the amount of the victim’s economic loss.
[Citations.] Their showing establishes the amount of restitution
the victim is entitled to receive, and the burden shifts to the
defendant to prove by a preponderance of the evidence that the
loss is other than that claimed.” (Selivanov, supra, 5 Cal.App.5th
at p. 788; People v. Taylor (2011) 197 Cal.App.4th 757, 761
(Taylor) [“Once the victim makes a prima facie showing of
economic losses incurred as a result of the defendant’s criminal
acts, the burden shifts to the defendant to disprove the amount of
losses claimed”].) Accordingly, absent a challenge by the
defendant, an award in the amount specified in the restitution
claim is not an abuse of discretion. (See Keichler, supra, 129
Cal.App.4th at p. 1048.)

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 B. The superior court properly awarded restitution
to the Estates based on the economic losses they
sustained as a direct result of appellant’s
criminal offenses, including the conspiracy to
commit theft, to which appellant pleaded guilty
1. The challenged restitution awards to the Estates
a. The restitution award of $208,777.03 to the Estate of
Jean Ablott based on counts 1 (conspiracy to commit
grand theft of personal property) and 83 (procuring and
offering a false or forged instrument) with respect to the
property located at 111 East Palmdale Avenue in Orange
In 2003 before her death on November 16, 2005, Jean
Ablott took out a loan from Wells Fargo Bank secured by her
property at 111 East Palmdale Avenue in Orange. On May 27,
2010, a fraudulent trustee’s deed upon sale was recorded by
which Cal-Western Reconveyance Corporation as trustee
purported to convey title to the property to Pinnacle Group
Realty Fund, one of the many entities controlled by appellant and
his coconspirators.7 On July 16, 2010, appellant paid $88,722.97
to Wells Fargo to pay off the remaining balance on the 2003 loan

7 After Ms. Ablott’s death, the property sat vacant, and
Wells Fargo remained the trustee under the 2003 deed of trust.
On February 25, 2010, a notice of trustee’s sale was recorded by
Cal-Western Reconveyance Corporation as the “duly appointed
trustee,” but no documentation showing the substitution of Cal-
Western Reconveyance Corporation for Wells Fargo as the
trustee was presented to the trial court. Further, “J. Vantilborg,”
who signed the trustee’s deed upon sale as the “Limited Signing
Officer” of Cal-Western Reconveyance Corporation never worked
for Cal-Western and had no authority to sign the document on
Cal-Western’s behalf.

12
and took control of the property. Two of appellant’s
coconspirators moved into the property and lived there rent-free
for 17 months until appellant sold the house for $289,277.03.
The superior court awarded the Estate of Jean Ablott
restitution in the amount of $208,777.03, plus interest. The
award represented $200,777.03 in stolen equity as a result of the
fraudulent trustee’s deed upon sale and lost rental value at the
rate of $500 per month for 17 months.
b. The restitution award of $231,636.91 to the Estate of
Lyle Gilmor Skarsten based on counts 1 (conspiracy to
commit grand theft of personal property) and 96 (grand
theft of personal property) with respect to the property
located at 2613 East Quincy Avenue in Orange
Lyle Gilmor Skarsten owned the property at 2613 East
Quincy Avenue free of any encumbrances when he died intestate
on October 13, 2006. His daughter, Robin Skarsten, was having
difficulty gaining control of the property and agreed to have
appellant upgrade, probate, and sell the property. Appellant
forged a grant deed recorded on November 10, 2011, purportedly
signed by the deceased Mr. Skarsten, conveying title to the
property to Ms. Skarsten. On December 6, 2011, another grant
deed was recorded whereby Ms. Skarsten transferred the
property to appellant. Thereafter, appellant sold the property for
$321,771.67, of which he paid $79,000 to Ms. Skarsten and spent
$11,134.76 on repairs.
The $231,636.91 restitution award, plus interest, to the
Skarsten Estate included the net proceeds appellant received
from the sale of the property ($321,771.67 offset by payments of
$79,000 to Ms. Skarsten and $11,134.76 for repairs to the
property).

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 2. Analysis
Appellant contends the trial court abused its discretion in
awarding victim restitution to the Estates because the
transactions in which appellant acquired the Estates’ properties
were “entirely legitimate.” The trial court rejected the same
argument below with the observation in its memorandum of
decision that appellant had pleaded guilty to count 1, conspiracy
to commit grand theft of personal property, count 83, procuring
and offering a false or forged trustee’s deed upon sale in
connection with the Ablott Estate property, and count 96, grand
theft of personal property in connection with the Skarsten Estate
property. In light of appellant’s admission of guilt with respect to
these counts, any question as to whether the transactions were
“legitimate” was not before the court in fixing the restitution
awards.
Appellant also attacks the restitution award to the
Skarsten Estate on the additional ground that the Estate was not
a “victim” of appellant’s criminal conduct because, he claims, the
estate (“to the extent one even existed”) “had no ownership
interest in [the property] at any relevant time.” Not only is this
claim contrary to the evidence, but it is also belied by appellant’s
admission through his plea to count 96 (in which the Skarsten
Estate was the named victim) that the Estate was a victim of his
criminal conduct.
Appellant further contends that the People failed to
“demonstrate an adequate factual basis to make a prima facie
case for restitution” to the Estates because there was no evidence
any documents were forged, or, in the case of the Skarsten Estate
property, that “the sale was anything other than wholly lawful.”
But appellant’s challenge to the fact that the trial court awarded

14
restitution to the Estates rather than contesting the amounts of
these awards is fatal to his claim that the superior court abused
its discretion. Appellant’s guilty plea to counts 1, 83, and 96
established the right of any victims of these offenses to receive
restitution from appellant. (§ 1202.4, subds. (a)(1) & (f);
Giordano, supra, 42 Cal.4th at p. 656; Stanley, supra, 54 Cal.4th
at p. 737.) The purpose of the restitution hearing was to afford
appellant the opportunity to challenge the amount of restitution
sought by the People, not to contest the validity of the conviction.
Accordingly, it was the prosecution’s initial burden to establish
the amount of the victims’ economic losses, after which the
burden shifted to appellant to prove by a preponderance of the
evidence that those losses were other than the amounts the
People claimed. (Selivanov, supra, 5 Cal.App.5th at p. 788; see
§ 1202.4, subd. (f)(1) [“defendant has the right to a hearing before
a judge to dispute the determination of the amount of
restitution”].)
In short, appellant’s attempt to challenge the restitution
awards to the Estates by challenging the factual basis for the
charges amounts to nothing more than an attempt to relitigate
culpability. Appellant may not do so in this appeal from the
restitution orders following his guilty plea. (In re Troy Z. (1992)
3 Cal.4th 1170, 1181 [“a defendant ‘cannot admit the sufficiency
of the evidence by pleading guilty [or nolo contendere] and then
question the evidence by an appeal’ ”]; People v. Zuniga (2014)
225 Cal.App.4th 1178, 1187 [by pleading guilty a defendant
admits all matters essential to the conviction]; see People v.
Cisneros-Ramirez (2018) 29 Cal.App.5th 393, 399–400.) The trial
court properly refused to entertain these contentions, as do we.

15
 Appellant also challenges restitution to the Estates on the
ground that “no representative or beneficiary of [the Estates] has
ever made a claim for the theft of [the properties].” However, as
set forth above, the prosecution has authority to seek restitution
on a victim’s behalf under section 1202.4, subdivision (f).
(Selivanov, supra, 5 Cal.App.5th at pp. 784–785; see Bernal,
supra, 101 Cal.App.4th at p. 162.) The fact that no
representative or beneficiary of the Estates submitted a claim for
restitution is therefore immaterial.
Finally, appellant contends that because his criminal
conviction on count 96 (relating to the Skarsten Estate property
on Quincy Avenue) was for grand theft of personal, not real
property, and the prosecution did not obtain a Harvey waiver
(People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey)), neither Ms.
Skarsten8 nor the Skarsten Estate was entitled to any
restitution. The claim lacks merit. The “personal property”
appellant admitted to stealing in entering his guilty plea to count
96 consisted of the proceeds from the sale of the Quincy Avenue
property, minus the offset for the repairs and payment to Ms.
Skarsten.
The trial court employed a rational method for determining
the appropriate amount of restitution owed to the Estates. There
was no abuse of discretion. (Nichols, supra, 8 Cal.App.5th at
p. 342.)

8 The trial court did not award restitution to Ms. Skarsten.

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 C. The superior court properly awarded restitution
to the Lending Institutions and Guillermo Cilia
based on the economic losses they sustained as a
direct result of the criminal offenses to which
appellant pleaded guilty, including the
conspiracy to commit theft of personal property
1. The challenged restitution awards to the Lending
Institutions and Guillermo Cilia
a. The $48,248.45 restitution award to Fannie Mae
based on counts 1 (conspiracy to commit grand theft of
personal property) and 3 (grand theft of personal
property) with respect to the property located at 2564
Deauville Street in San Diego
In 2010 Gabriel and Claudia Eribez were in default on their
2007 mortgage and sought appellant’s help to arrange a short
sale of the property. Unbeknownst to Mr. Eribez, appellant had
him sign a grant deed conveying the property as a gift to an
entity controlled by appellant. But the handwritten notation “$0
Gift” was added to the deed after Mr. Eribez had signed it: He
had not intended the conveyance as a gift to anyone. The grant
deed was recorded on July 13, 2010. Thereafter, Mr. Eribez
rented the property back from one of appellant’s companies for
$1,400 a month, believing he would have the opportunity to
repurchase the property.
On October 19, 2010, Mr. Eribez purportedly filed a lawsuit
in Orange County Superior Court for fraud and other causes of
action as to the Deauville property against a title company and
two mortgage lenders. Mr. Eribez, however, did not file or
authorize the lawsuit. Soon thereafter, a lis pendens was
recorded on the Deauville property at the San Diego County

17
Recorder’s Office by “Wolfe Legal Services,” and another lis
pendens was filed in the Orange County Superior Court by a
fictitious attorney. The Eribezes did not file or authorize the
filing of either of these documents. Eventually, the lender,
Fannie Mae, foreclosed, and a trustee’s deed upon sale was
recorded on November 10, 2011.
The $48,248.45 restitution award to Fannie Mae included
$25,848.45 in foreclosure costs and $22,400 for lost rental value,
calculated at $1,400 per month during the 16-month period
Fannie Mae was unable to secure the property for its use.
b. The $34,535 restitution award to Bank of America
based on counts 1 (conspiracy to commit grand theft of
personal property) and 54 (grand theft of personal
property) with respect to the property located at 501
South Courtney Avenue in Fullerton
Karla Cruz and Octavio Morales paid appellant $1,000 to
arrange a loan modification for their property at 501 South
Courtney Avenue. During the loan modification process, they
were told they needed to sign a grant deed, which they did. They
never got the loan modification. Instead, beginning in November
2008, the couple was required to pay $695 per month in rent to
appellant if they wished to remain in their home. They paid a
total of $9,035 in rent for 13 months. Eventually, appellant
purchased the property through one of his entities in a short sale
from Bank of America. Upon the short sale, Bank of America
paid an entity controlled by appellant a $9,000 commission and
$16,500 to discharge a false lien placed on the property by
appellant.
The superior court awarded restitution to Bank of America
in the sum of $34,535, plus interest. The award included $9,035

18
for 13 months of lost rent, $16,500 paid on the false lien, and
$9,000 paid as commission on the short sale.
c. The $66,300 restitution award to Bank of America
based on counts 1 (conspiracy to commit grand theft of
personal property) and 65 (grand theft of personal
property) with respect to the property located at 1508
Wavertree Lane in Fullerton
Francisca Guerrero sought defendants’ assistance to
arrange a short sale of her home. Appellant forged Ms.
Guerrero’s signature on a grant deed recorded July 3, 2009,
conveying the property for no consideration to “George Penn,” a
name defendants made up for a nonexistent person. Ms.
Guerrero moved out after being threatened by defendants, and
the property was then rented out for $1,400 per month. Bank of
America, the lender on the property, foreclosed on the property
on January 15, 2013, but appellant recorded a lis pendens in
order to delay foreclosure.
The $66,300 restitution award, plus interest, to Bank of
America included $7,500 in legal costs to reclaim the property
and $58,800 rental value for the 42 months appellants were in
wrongful possession and Bank of America was unable obtain
value from the property.
d. The $112,117 restitution award to Guillermo Cilia
based on counts 1 (conspiracy to commit grand theft of
personal property) and 105 (grand theft of personal
property) with respect to the property located at 15668
Fairgrove Avenue in La Puente
In 2008 Guillermo Cilia and his wife, Veronica Castro, were
going through a divorce, and Mr. Cilia wanted to sell the house.
Although he was not in default on the mortgage, Mr. Cilia

19
approached appellant to arrange a short sale of the property.
Appellant told Mr. Cilia a short sale had occurred, but instead
forged Mr. Cilia’s signature on a grant deed gifting himself the
property. Appellant then paid off Mr. Cilia’s $175,393 loan on
the property. The forged deed was recorded on March 23, 2009,
and on September 22, 2010, appellant sold the property for
$275,000, pocketing the proceeds.
Ms. Castro and her family were still living in the home
when appellant assumed control of it. Appellant demanded that
Ms. Castro pay $695 per month in rent to remain on the property.
Ms. Castro, however, refused to pay rent because she had not
signed the grant deed and she was still making payments on the
mortgage. Appellant filed an unlawful detainer and evicted Ms.
Castro from the home.
The superior court ordered restitution of $112,117, plus
interest, to Mr. Cilia, consisting of $99,607 from the proceeds of
the sale less repayment of the loan and $12,510 in lost rent for
the 18 months appellant had wrongful possession of the property.
e. The $44,584.16 restitution award to Fannie Mae
based on counts 1 (conspiracy to commit grand theft of
personal property) and 16 (grand theft of real property)
with respect to the property located at 10154 Camino
Ruiz, No. 7 in San Diego
James Conway approached appellant to arrange a short
sale of his property at 10154 Camino Ruiz, No. 7, although he
was not in default on his mortgage at the time. Believing he was
authorizing a short sale, Mr. Conway signed a grant deed
conveying the property as a “bonafide gift” to an entity controlled
by appellant. After recording the deed on February 10, 2010,
appellant rented the property out for $1,395 per month; after six

20
months the property was rented to a different tenant for $995 per
month. On August 22, 2011, appellant filed a fraudulent lawsuit
in connection with the property on behalf of “Jason Conway.” On
the same day a notice of pendency of action was recorded by a
fictitious attorney whose listed phone number was for a device in
appellant’s office. Fannie Mae eventually foreclosed on the
property on March 19, 2012, 25 months from the date of the
fraudulent conveyance and after the dismissal of the sham
lawsuit.
The superior court awarded restitution totaling $44,584.16,
plus interest, to Fannie Mae. The award consisted of $27,275 for
lost rent and $17,309.16 in legal costs.
f. The $54,250 restitution award to JP Morgan Chase
based on counts 1 (conspiracy to commit grand theft of
personal property) and 33 (grand theft of real property)
with respect to the property located at 4597 Acoma Way
in San Diego
Thomas and Joni Dunn believed they were entering into a
short sale of their property. Unbeknownst to the Dunns, the
alleged short sale was to appellant, and the grant deed they
signed was later modified to convey the property as a gift. The
grant deed was recorded on February 25, 2010. Thereafter,
appellant rented the property out at the rate of $1,750 per month
until the tenants were evicted. Appellant and his coconspirators
then stalled the eventual foreclosure of the property by posing as
the Dunns and submitting false requests for short sale
consideration and loan modifications to the lender, JPMorgan
Chase, in order to coerce the lender into selling the property at a
price below the property’s actual valuation. On October 2, 2012,

21
31 months after appellant assumed control of the property,
JPMorgan Chase foreclosed.
The superior court awarded JPMorgan Chase $54,250 in
restitution, plus interest, for the 31 months of lost rental value.
g. The $16,250 restitution award to GMAC Mortgage
based on count 40 (grand theft of real property) with
respect to the property located at 1025 Osage Drive in
Spring Valley
On January 25, 2010, Francisco Plazola signed a grant
deed conveying his property to Reconveyance Trustee LLC in the
belief that he was entering into a short sale of the property.
Mr. Plazola did not know that the company was controlled by
appellant, and unbeknownst to Mr. Plazola, the words “this is a
bonafide gift” were later added to the signed deed. The deed was
then recorded on August 20, 2010. On March 23, 2010, appellant
began collecting rent on the property at the rate of $1,250 per
month. The lender, GMAC Mortgage, foreclosed on March 10,
2011.
The superior court awarded GMAC Mortgage restitution in
the amount of $16,250, plus interest, representing the 13 months
of lost rental value at the rate of $1,250 per month.
h. The $99,472.50 restitution award to Bank of America
based on counts 1 (conspiracy to commit grand theft of
personal property) and 44 (grand theft of real property)
with respect to the property located at 30633 San
Anselmo Drive in Murrieta
In 2010 Mr. Plazola also sought appellant’s assistance to
obtain a loan modification with respect to another property he
owned, but appellant persuaded him to short sell the property
instead. On January 25, 2010, believing they were entering into

22
a short sale of the San Anselmo Drive property, Mr. Plazola and
his wife signed a grant deed conveying the property to
Reconveyance Trustee LLC. The Plazolas did not know that the
company was controlled by appellant, and the language “this is a
bonafide gift and the grantor received nothing in return” was
added to the deed after the Plazolas signed it. The deed was then
recorded on January 29, 2010. After taking control of the
property, appellant rented it out for $1,750 per month.
Eventually, on September 11, 2014, Bank of America foreclosed
and gained control of the property, despite appellant’s attempt to
prevent the lender from foreclosing by submitting a fraudulent
short sale offer to buy the property.
The superior court’s $99,472.50 restitution award, plus
interest, to Bank of America included $98,000 for 56 months of
lost rental value and $1,472.50 in legal costs.
i. The $43,750 restitution award to GMAC Mortgage
based on count 28 (procuring and offering a false or
forged instrument) with respect to the property located at
4205 Lamont Street, No. 17 in San Diego
Believing she was authorizing a short sale of her property,
Kathleen Vestevich signed a grant deed conveying the property to
Reconveyance Trustee LLC, a company controlled by appellant.
Although the grant deed indicates the conveyance was a
“bonafide gift,” Ms. Vestevich did not intend to gift the property,
and those words were not on the grant deed when she signed it.
The grant deed was recorded on February 11, 2010. After
gaining control of the property, appellant rented it out for $1,750
per month. In an effort to delay foreclosure, defendants filed a
fraudulent complaint and lis pendens in September 2010.

23
Twenty-five months after appellant took possession, GMAC
Mortgage, the lender, foreclosed on the property.
The superior court awarded GMAC Mortgage $43,750 in
restitution, plus interest, for 25 months of lost rental value.
j. The $67,496 restitution award to Bank of America
based on count 75 (procuring and offering a false or
forged instrument) with respect to the property located at
210 South Montague Avenue in Fullerton
Lindsay Ott sought appellant’s assistance with a short sale
of her home. Appellant falsely told Ms. Ott a short sale had
occurred and had her sign a grant deed conveying the property to
one of defendants’ fictitious entities. After Ms. Ott signed the
deed, the language “no consideration/gift transfer” was added;
Ms. Ott did not intend to convey the property as a gift, and no
short sale ever occurred. Appellant rented the property out for
$1,400 per month. Bank of America foreclosed on September 24,
2012, 44 months after appellant obtained the property.
The court’s $67,496 restitution award, plus interest, to
Bank of America included $61,600 for 44 months of lost rental
value and $5,896 for legal costs.
k. The $36,050 restitution award to IndyMac/One West
Bank based on counts 1 (conspiracy to commit grand
theft of personal property) and 50 (mortgage fraud) with
respect to the property located at 13636 Hollowbrook Way
in Corona
On April 23, 2010, IndyMac/One West Bank, the lender on
the Hollowbrook property, accepted a short sale for $324,654.83,
of which the bank would receive $301,185.83. But the short sale
was fraudulent: The purported buyer was a fictitious person
made up by appellant, and no short sale for $324,654.83 occurred.

24
Rather, the property was sold for $365,000 to an actual buyer on
April 26, 2010. Although IndyMac/One West Bank received the
agreed payout of $301,185.83, appellant was paid $24,950 for a
false lien placed on the property, a $9,125 commission was paid
to appellant’s realty company, and appellant’s escrow company
received $1,975 in escrow fees.
The superior court awarded IndyMac/One West Bank
restitution in the amount of $36,050, plus interest, consisting of
$24,950 paid to appellant on the false lien, the $9,125 commission
paid to appellant’s realty company, and $1,975 paid to appellant’s
escrow company. The court reasoned that although the difference
between the fraudulent short sale and the actual short sale was
greater than the restitution award, $36,050 represented the
wrongful gains by appellant as a result of the fraudulent
transaction.
l. The $62,546.42 restitution award to Wells Fargo
Bank based on counts 1 (conspiracy to commit grand
theft of personal property) and 88 (mortgage fraud) with
respect to the property located at 1250 Venice Avenue in
Placentia
Douglas and Patricia Shrier owned the property at 1250
Venice Avenue. In late 2009, Mrs. Shrier was suffering from
dementia and the couple had taken some losses in the stock
market, which prompted Mr. Shrier to seek appellant’s help in
getting a loan modification. But appellant falsely told Mr. Shrier
the loan modification request had been denied and persuaded
him to do a short sale instead. On August 17, 2011, the lender on
the property, Wells Fargo Bank, obtained a residential broker
opinion that the property was valued at $465,000. But
defendants submitted fraudulent documents to the bank

25
purporting to show that the best offers on the property were well
below market value, and on December 23, 2011, the bank
accepted a fraudulent short sale to appellant for $405,000.
The superior court awarded Wells Fargo Bank restitution
in the amount of $62,546.42, plus interest. The award
represented the lender’s legal costs plus the difference between
the appraised market value of the property, $465,000, and
$405,000, the amount for which it was sold in the fraudulent
short sale.
m. The $54,250 restitution award to Bank of America
based on counts 1 (conspiracy to commit grand theft of
personal property) and 15 (forgery) with respect to the
property located at 656 Ballard Street, No. 10 in
El Cajon
Sergio Pulido approached appellant seeking a short sale of
his home. Believing he was authorizing a short sale, Mr. Pulido
signed a grant deed conveying the property to Reconveyance
Trustee LLC, one of the companies appellant controlled.
Although the grant deed indicates the conveyance was a
“bonafide gift and the grantor received nothing in return,” Mr.
Pulido had no intention of giving his property away, and those
words were not on the grant deed when he signed it. The grant
deed was recorded on December 14, 2009. Mr. Pulido’s ex-wife,
Claudia Hatfield, continued to live at the property, paying rent to
appellant at the rate of $875 per month. Appellant successfully
delayed foreclosure by submitting fictitious below-market offers
on the property. On February 18, 2015, 62 months after
appellant wrongfully obtained the property, Bank of America, the
lender, foreclosed.

26
 The superior court awarded Bank of America $54,250 in
restitution, plus interest, consisting of lost rental value at the
rate of $875 per month for 62 months.
2. Analysis
a. The challenged restitution awards are supported by
substantial evidence.
Running through appellant’s challenge to all of the
restitution awards is the general assertion that the awards are
not supported by substantial evidence. Specifically, appellant
contends that no competent evidence was presented to support
the prosecution’s restitution claims based on lost rent. Asserting
that economic losses may not be established by the hearsay
testimony of a nonvictim without documentary evidence to
support the alleged losses, appellant claims that Donahue’s lay
testimony, which he avers was unsupported by any written claim
for or documentary evidence of the purported economic losses,
should have been excluded or was entitled to no weight because it
was not “ ‘factually credible.’ ”
Of course, in reviewing the sufficiency of the evidence for a
trial court’s restitution order, “ ‘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.” ’ ” (Walker v. Appellate Division of
Superior Court (2017) 14 Cal.App.5th 651, 656.) We neither
reweigh nor reinterpret the evidence, but rather determine
whether there is sufficient evidence to support the inference the
trier of fact has drawn. (People v. Baker (2005) 126 Cal.App.4th
463, 469.)
The prosecution carried its burden by presenting
uncontroverted evidence of the economic losses sustained by the

27
victims of appellant’s admitted criminal conduct through the
testimony of the investigator on the case, Special Agent Donahue,
and the investigative auditor. Donahue’s testimony was
supported by extensive documentation of the instruments of
defendants’ predatory real estate fraud scheme, including forged
and fraudulent grant deeds, sham short sales, and fake lawsuits,
lis pendens and other documents that were recorded to frustrate
foreclosure on the properties and prolong the scheme. The
prosecution also presented canceled checks from the rental of the
misappropriated properties, not only to prove appellant’s ill-
gotten gains, but also to establish a rational measure of economic
damage for the lost use of these properties.
The fact that some of this evidence was hearsay did not
render it inadmissible or incompetent. As set forth above, a trial
court has expansive discretion as to the type of information and
calculation methods that may be used in determining restitution.
(Phu, supra, 179 Cal.App.4th at p. 283; see People v. Prosser
(2007) 157 Cal.App.4th 682, 691–692.) And section 1203.1d,
subdivision (d) expressly prohibits exclusion of documentary
evidence on hearsay grounds in determining restitution.
Appellant further contends that Donahue “testified
repeatedly about the existence and contents of rent checks and
receipts in the People’s possession” but not introduced into
evidence at the restitution hearing. He claims that this
testimony was inadmissible and should have been excluded
under Evidence Code sections 1521 and 1523. According to
appellant, in the absence of these documents that were critical to
proving economic losses, the exclusion of Donahue’s testimony
about them would have left the prosecution’s restitution claims
unsupported by substantial evidence. But the testimony which

28
appellant asserts was inadmissible occurred over just two pages
of transcript, and referred only in general terms to the thousands
of canceled checks from 20 to 30 bank accounts that represented
payments to defendants. Donahue’s brief testimony lacked any
detail about the checks or the specific properties to which they
related, and was offered simply to explain⎯as a general
matter⎯that tracing only the checks to determine the value of
lost use of the properties caused by appellant’s fraudulent
possession would be “difficult,” and in some cases impossible. In
fact, because tenants often paid cash, and because the properties
were not necessarily rented out for the entire duration of
appellant’s wrongful possession, the sum of the checks
themselves was not an accurate measure of the victims’ actual
economic losses. Donahue’s testimony in this regard was
properly admitted and accepted by the trial court.
Finally, appellant asserts in a series of footnotes that
substantial evidence did not support the restitution awards to the
Lending Institutions because the People’s evidence⎯in the form
of canceled checks and receipts⎯showed defendants received
substantially lower amounts of rent than the court awarded in
restitution. But appellant offers no basis for limiting the
calculation of economic loss to the illicit gains defendants actually
extracted from the properties they misappropriated. Indeed,
appellant’s formula would reward a defendant’s incompetence in
failing to obtain full value from the stolen property, rather than
making the victim whole. Constraining restitution in this
manner would thus run afoul of the statutory mandate that the
restitution award fully reimburse the victim for all economic
losses sustained as a result of the defendant’s criminal conduct.
(§ 1202.4, subd. (f)(3); Stanley, supra, 54 Cal.4th at p. 737;

29
Giordano, supra, 42 Cal.4th at p. 656.) The canceled checks and
receipts introduced by the People constituted substantial
evidence of the rental value of the properties, but they did not tell
the whole story of the victims’ economic losses for which they
were entitled to be reimbursed.
b. The Lending Institutions and Mr. Cilia were victims
of appellant’s criminal conduct, and the prosecution
properly sought restitution on their behalf.
Appellant challenges the restitution awards on the grounds
that the lenders and Mr. Cilia suffered no economic losses from
the offenses to which appellant pleaded guilty because they were
not identified as victims in the indictment and they did not
submit claims for restitution. As set forth above, however, under
section 1202.4, subdivision (f), the People were authorized to
make a restitution claim and establish economic losses on behalf
of any person or entity that suffered harm as a direct result of
appellant’s criminal conduct. (Selivanov, supra, 5 Cal.App.5th at
pp. 784–785.) The victims on whose behalf the People sought
restitution need not have been named in the indictment (People v.
Martinez (2017) 10 Cal.App.5th 686, 724–725 [upholding
restitution to unnamed victim of conspiracy]; Walker, supra, 231
Cal.App.4th at p. 1276), nor is there any requirement that the
People present a written statement by victims detailing their
economic losses (Selivanov, at pp. 784–785).
Here, because the Lending Institutions and Mr. Cilia
suffered economic losses through the deprivation of the value and
use of their properties as a direct result of appellant’s admitted
criminal conduct, they were clearly “victims” as defined by
statute, even though they were not named in the counts to which
appellant pleaded guilty.

30
 c. Lost rental value was a rational and appropriate
measure of economic loss for the period in which
appellant was in wrongful possession of the properties.
Appellant contends that the People improperly sought, and
the court abused its discretion in awarding, restitution on the
basis of theories of liability and measures of economic loss
unrelated to the charges in the indictment. Specifically, he
alleges that the prosecution impermissibly changed the “theory of
mortgage fraud from the theory alleged in the indictment, and
added mortgage fraud claims not pleaded in the indictment.”
According to appellant, “[t]his post-plea, post-Wolfe’s death
addition of new claims with their new theory of and measure of
economic losses for mortgage fraud is a clear Sixth Amendment
violation.” Appellant goes on to assert⎯without legal
support⎯that lost rents do not constitute a valid measure of
economic loss for mortgage fraud. And because all the restitution
awards to the Lending Institutions were based on a theory of
mortgage fraud, the types and amounts of economic losses the
prosecution asserted (specifically, lost rental value) bore no
relation to any actual economic losses sustained.
Contrary to appellant’s contentions, the only theory of loss
on which the People proceeded was that any victim who
sustained economic losses as a direct result of appellant’s
criminal conduct with respect to each property and count of
conviction was entitled to reimbursement.9 (§ 1202.4, subd. (f);

9 In support of his claim that the prosecution
“impermissibly changed” its theory of restitution, appellant cites
section 1009, which generally prohibits the amendment of a
charging document following a guilty plea. Appellant’s argument

31
Stanley, supra, 54 Cal.4th at p. 737; Giordano, supra, 42 Cal.4th
at p. 656.) The prosecution’s pursuit of this theory of restitution,
based on article I, section 28, subdivision (b) of the California
Constitution and section 1202.4 of the Penal Code, did not
implicate, much less violate appellant’s Sixth Amendment rights.
(See People v. Foalima (2015) 239 Cal.App.4th 1376, 1398–1399
[no Sixth Amendment right to jury trial on restitution issues];
People v. Pangan (2013) 213 Cal.App.4th 574, 585 [“direct victim
restitution is a substitute for a civil remedy so that victims of
crime do not need to file separate civil suits. It is not increased
‘punishment’ ”].)
In seeking restitution on behalf of a victim, it is the
People’s burden to present to the trial court a rational basis for
calculating the victim’s economic loss that is supported by the
evidence. (Selivanov, supra, 5 Cal.App.5th at p. 788; Taylor,
supra, 197 Cal.App.4th at p. 761.) The trial court may then fix
restitution using the prosecution’s formula as long as it is
rational and reasonably calculated to make the victim whole.
(Giordano, supra, 42 Cal.4th at pp. 663–664; Nichols, supra,
8 Cal.App.5th at p. 342.) However, “the amount ordered as
restitution need not mirror what a victim might obtain in a civil
action,” nor does a trial court abuse its discretion in awarding
restitution that does not reflect the exact amount of the loss.
(Bernal, supra, 101 Cal.App.4th at p. 162; People v. Akins (2005)
128 Cal.App.4th 1376, 1382.)

in this regard is nonsense. Section 1009 has no application here:
The prosecution’s theory of restitution⎯that the victims of the
crimes of which appellant was convicted were entitled to
restitution⎯did not (and could not) “amend” the indictment or in
any way “change” the offenses to which appellant pleaded guilty.

32
 The prosecution met its burden here by adducing
competent evidence that while appellant was in wrongful
possession of the properties, the lenders were unable to obtain
value from those properties. A rational measure of that lost
value was the monthly rent appellant charged (or reasonably
could have obtained) while he controlled the properties. Once the
prosecution made this prima facie showing of loss, the burden
shifted to appellant to show the loss was other than the
prosecution claimed, and it was up to the trial court to determine
which party had met its respective burden. (Kelly, supra, 59
Cal.App.5th at pp. 1183–1184; People v. Sy (2014) 223
Cal.App.4th 44, 63.) In light of appellant’s failure to offer any
evidence challenging the amounts of restitution sought by the
People on behalf of the Lending Institutions and Mr. Cilia, the
trial court did not abuse its discretion in awarding restitution to
the victims in those amounts. (Keichler, supra, 129 Cal.App.4th
at p. 1048.)
d. The superior court properly awarded restitution based
on economic losses suffered as a direct result of the
crimes to which appellant pleaded guilty.
Appellant contends that the People’s failure to obtain
Harvey waivers as to the 96 counts dismissed following
appellant’s plea agreement precluded restitution to victims whose
economic losses were the result of criminal conduct alleged in the
counts that were dismissed. But as set forth above, the economic
losses were shown to be a direct result of the crimes charged in
the counts to which appellant pleaded guilty. Thus, the absence
of a Harvey waiver was irrelevant.
In Harvey, supra, 25 Cal.3d at page 758, the California
Supreme Court held that a sentencing court may not consider

33
any facts underlying a dismissed count for the purpose of
aggravating or enhancing the defendant’s sentence. The court
explained that, implicit in a plea bargain in which the defendant
pleads guilty to one count in consideration for dismissal of
another “is the understanding (in the absence of any contrary
agreement) that defendant will suffer no adverse sentencing
consequences by reason of the facts underlying, and solely
pertaining to, the dismissed count.” (Ibid., italics added; K.R. v.
Superior Court (2017) 3 Cal.5th 295, 304.) That “contrary
agreement” became known as a Harvey waiver, which was
codified to apply to victim restitution with the enactment of
section 1192.3, subdivision (b): “If restitution is imposed which is
attributable to a count dismissed pursuant to a plea bargain, as
described in this section, the court shall obtain a waiver pursuant
to People v. Harvey (1979) 25 Cal.3d 754 from the defendant as to
the dismissed count.”
Appellant’s guilty plea included the conspiracy to commit
grand theft of personal property charged in count 1, making
appellant liable for restitution to all direct victims of the criminal
conspiracy where his criminal conduct led to those victims’
economic losses. (People v. Martinez, supra, 10 Cal.App.5th at
pp. 724–725.) Only three properties were not part of the
conspiracy: 1025 Osage Drive in Spring Valley (count 40, grand
theft of real property), 4205 Lamont Street, No. 17 in San Diego
(count 28, procuring and offering a false or forged instrument⎯lis
pendens), and 210 South Montague Avenue in Fullerton (count
75, procuring and offering a false or forged instrument⎯lis
pendens). But the prosecution’s evidence established that GMAC
Mortgage (counts 40 and 28) and Bank of America (count 75)
suffered economic losses as a direct result of the admitted

34
criminal conduct underlying appellant’s guilty pleas to counts 40,
28, and 75. Because the restitution awards were based on losses
attributable to the counts to which appellant pleaded guilty, no
Harvey waiver was required.
e. Appellant may be entitled to a credit for restitution
payments made by any of the codefendants only after
such contributions are actually made.
Appellant contends that the superior court abused its
discretion in failing to offset the restitution orders against
appellant by $245,834.60 in restitution paid by the codefendants.
In a criminal case with multiple defendants, the trial court has
the authority to require codefendants to pay restitution jointly
and severally. (Nichols, supra, 8 Cal.App.5th at p. 347.) When
the court makes such an order, each defendant is entitled to a
credit for any actual payments made by the other. (People v.
Blackburn (1999) 72 Cal.App.4th 1520, 1535.) The Attorney
General has no objection to any offset for restitution made by any
codefendant, and the trial court also recognized that such an
offset would be appropriate. However, no payments appear to
have been made by any of the codefendants; until they are,
appellant’s claim is premature. (Eye Dog Foundation v. State
Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [the
duty of every court “ ‘ “is to decide actual controversies by a
judgment which can be carried into effect, and not to give
opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the matter
in issue in the case before it” ’ ”]; People v. Pipkin (2018) 27
Cal.App.5th 1146, 1149.)

35
 II. The Superior Court Properly Awarded Interest
on the Stipulated Amount of Unpaid Taxes
Owed to the Franchise Tax Board
Appellant contends that “[p]er [his] plea agreement, his
restitution to [the Franchise Tax Board] was fixed at $140,754,
an amount that necessarily included accrued interest and
penalties up to either June 26, 2015, the date his plea was
entered, or July 17, 2017, the date judgment was entered against
him.” The record contradicts appellant’s claim.
As part of his plea agreement, appellant stipulated to
restitution in the amount of $140,754 in unpaid taxes to the
Franchise Tax Board. The sum did not include interest.10 At the
conclusion of the restitution hearing, the superior court ordered
appellant’s estate to pay restitution in the stipulated amount to
the Franchise Tax Board, “plus applicable interest.” The court
elected to impose interest from the date of loss rather than the
date of sentencing, in accordance with section 1202.4, subdivision
(f)(3)(G).11

10 Several exhibits submitted by the prosecution at the
restitution hearing refute appellant’s claim: People’s exhibit 96,
setting forth the calculation of appellant’s unpaid taxes, showed
taxes due in the amounts of $63,843 for 2009, $57,106 for 2010,
and $19,805 for 2011, for a total of $140,754 without interest;
People’s exhibit 97a detailed the prosecution’s calculation of
interest separate and apart from the amount of unpaid taxes; and
People’s exhibit 98 listed the $140,754 in unpaid taxes with an
additional $26,665.06 owed in accrued interest.
11 Section 1202.4, subdivision (f)(3) provides in relevant
part: “To the extent possible, the restitution order . . . shall be of
a dollar amount that is sufficient to fully reimburse the victim or

36
 Thus, contrary to appellant’s assertion, the record plainly
shows the stipulated amount of restitution owed to the Franchise
Tax Board did not include interest. The superior court properly
exercised its discretion in awarding interest from the date of loss,
and the inclusion of interest did not give the Franchise Tax Board
an impermissible windfall, as appellant claims.
Finally, appellant argues that interest should be capped as
of June 26, 2015, when he entered his plea, or at the latest,
July 21, 2017, the date of sentencing. Appellant asserts that the
estate “should not [be] responsible for interest accruing on [the]
award from the date the People were entitled to pay off [the
Franchise Tax Board] . . . yet with no justification have not done
so.” But the prosecution was not authorized to recover the
stipulated restitution on behalf of the Franchise Tax Board until
the superior court accepted the stipulation. (See People v.
McCurdy (2014) 59 Cal.4th 1063, 1100 [trial court was not
required to accept stipulation offered by defendant]; People v.
Rogers (2013) 57 Cal.4th 296, 329–330.) The court’s acceptance of
the stipulation did not occur until the court issued its
memorandum of decision following the restitution hearing, which
the parties agreed would not take place until after the case was
resolved against all defendants.
Moreover, after the sentencing hearing and even since the
superior court issued the memorandum of decision, appellant has
been responsible for the ongoing accrual of interest on the

victims for every determined economic loss incurred as the result
of the defendant’s criminal conduct, including, but not limited to,
all of the following: [¶] . . . [¶] (G) Interest, at the rate of 10
percent per annum, that accrues as of the date of sentencing or
loss, as determined by the court.”

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restitution. First, appellant delayed the restitution hearing at
which the superior court accepted the stipulation by filing an
appeal following his guilty plea. That delay was followed by the
delay caused by the special administrator’s challenge to the
restitution order in the instant appeal. Accordingly, until this
appeal is concluded and the judgment is final, the People will be
foreclosed from recovering the stipulated restitution on behalf of
the Franchise Tax Board, and interest on that award will
continue to accrue.
DISPOSITION
The superior court’s March 9, 2020 restitution order is
affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

CHAVEZ, J.

HOFFSTADT, J.

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