People v. Lee CA1/2

Filed 6/24/22 P. v. Lee CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, A158225, A159872
v.
(Contra Costa County
PATRICK ELLIOT LEE, Super. Ct. No. 51806082)
Defendant and Appellant.

After a jury convicted Patrick Elliot Lee (Lee) of eight counts of
insurance fraud under Penal Code section 550, subdivisions (a)(1) and (b)(1),1
the trial court ordered him to pay restitution to the insurers he defrauded. In
these consolidated appeals, he seeks reversal of the judgment and the
restitution order. Lee argues his conviction was the product of a
constitutionally deficient search warrant, an erroneously denied motion to
recuse the prosecutor, prosecutorial misconduct, insufficient evidence as to
two of the eight counts, and cumulative error. As for restitution, Lee
contends the trial court erred in ordering him to pay the attorney fees of an
insurer who had previously signed a settlement and release as to Lee’s

All subsequent statutory references are to the Penal Code unless
1

otherwise noted.

1
fraudulent claim. We find no reversible error and affirm both the judgment
and the restitution order.
BACKGROUND
I.
The Investigation
On February 10, 2015, San Pablo Police Officer Matthew Brown
responded to the scene of a reported burglary, where Lee’s wife told him she
had returned home to find all the Lees’ property missing. Lee subsequently
filed a theft claim under his renter’s insurance policy with Homesite
Insurance (Homesite), telling the insurer that the allegedly stolen property
exceeded $50,000 in value and that Lee had hired an attorney to assist him
with the claim.
On March 12, 2015, Officer Brown called California Department of
Insurance Detective Clint Herndon and told him the burglary reported by
Lee’s wife on February 10 involved “suspicious circumstances that he thought
might involve an insurance claim.” Herndon then met with Brown and Suzie
Short, an investigator working for Homesite. After Brown and Short showed
Herndon evidence they had gathered on their own, Herndon decided to open
his own fraud investigation into Lee’s theft claim.
In the course of his investigation, Herndon discovered that Lee had
communicated with Officer Brown by e-mail from a Gmail account.
Homesite’s initial acknowledgement of Lee’s theft claim had been sent to the
same Gmail address (the Gmail address). When Lee rented a storage unit
eight days before the reported burglary, he used the Gmail address. After he
moved property out of that storage unit, he rented a second unit near his new
home in Menlo Park, again using the Gmail address.

2
 Detective Herndon’s investigation also uncovered a car insurance claim
Lee had made on October 9, 2014, under his policy with Progressive
Insurance (Progressive). Pursuant to the terms of Lee’s insurance policy,
Progressive had paid $720 to provide Lee with a rental car after Lee claimed,
on November 12, 2014, that he was taking his Porsche in for repairs. During
the period in which the car insurance claim was being resolved, Lee used the
Gmail address consistently in his correspondence with Progressive.
On June 16, 2015, Herndon sought a search warrant for Lee’s Gmail
“address for the date range November 12, 2014 through June 16, 2015” (the
Gmail warrant). In the attached affidavit, Herndon summarizes as follows
the factual basis for his suspicion that a search of the Gmail account would
reveal evidence of insurance fraud:
(1) “the condo” from which Lee’s property was reported stolen “was
immaculately clean”;
(2) “nearly every piece of property was taken . . . except for the high-end
appliances that belonged to the property owner”;
(3) “there was no evidence of forced entry”;
(4) “Lee . . . had a storage unit in Emeryville from 2/2/15 to 2/21/15,
which is a range of 8 days before and 11 days after the alleged theft report”;
(5) “Lee rented a new storage unit . . . on 2/26/15 near his reported
residence in Menlo Park”;
(6) “Lee . . . signed a release of claims to settle [the] theft . . . claim” on
May 19, 2015;
(7) “Lee moved his property out of . . . [s]torage on 5/20/15 and the
manager reported seeing household goods in the back of Lee’s car”;

3
 (8) “Lee initially reported over $100,000 in losses to Homesite. After he
was notified that his case was being investigated, he initially agreed to a
$10,000 payment and later settled for $18,000”;
(9) “Lee’s attorney claimed he had about $15,000 in fees into the case,
leaving Lee with a net of about $3,000 to cover his alleged loss of over
$100,000”; and
(10) “Lee has several prior questionable insurance claims, including the
Progressive automobile claim in 2014 in which your affiant believes that Lee
obtained payment from Progressive for a rental car under fraudulent and
false pretenses.”
Herndon supported this last assertion with specific facts elsewhere in
the affidavit, writing that photographs taken in 2015—after Progressive had
paid for Lee’s rental car—depict scratch damage “consistent with
the . . . October 2014 [claim],” leading Herndon to believe that the Porsche
had never been taken in for repairs.
A Contra Costa County superior court judge signed the Gmail warrant
on June 16, 2015. Evidence seized under the warrant ultimately led
investigators to Aran Eversman, a longtime associate of Lee living in Cave
Junction, Oregon. When police asked Eversman whether he had received
any property from the Lees, he showed them several items, including a
“couch set, a TV stand, a very distinctive coffee table made out of a Ferrari
wheel, . . . a vacuum, a steam cleaner, and a bed.” These items matched
photographs of the items Lee had reported stolen in his Homesite insurance
claim.

4
 II.
Criminal Proceedings
A. Pre-Trial Proceedings
On December 17, 2015, Lee and his wife were charged by felony
complaint with eight counts of insurance fraud under Penal Code section 550,
subdivisions (a)(1) and (b)(1). The final amended information charged nine
counts, of which counts 1 through 7 concerned the Homesite claim and counts
8 through 9 concerned the 2014 Progressive claim.
On June 12, 2018, Lee filed a motion to suppress evidence under
section 1538.5, arguing inter alia that the Gmail warrant was overbroad and
unsupported by probable cause. After several continuances, the motion was
heard and denied on March 5, 2019.
Prior to trial, Lee also filed a motion to recuse the Contra Costa County
District Attorney’s Office, arguing that prosecutorial bias should be inferred
from the circumstances surrounding the execution of a July 16, 2018 search
warrant for Lee’s yacht (the yacht warrant). The statement of probable cause
attached to the yacht warrant was an affidavit sworn by Contra Costa
District Attorney’s Office Senior Inspector John Garcia. In the affidavit,
Garcia relayed allegations that Lee had physically abused his wife and set
aside $50,000 to hire a hitman to kill Greg Chiarella, the deputy district
attorney prosecuting Lee’s case. The trial court denied the recusal motion on
October 17, 2018.
B. Trial and Verdict
Jury trial commenced on October 31, 2018. In their case-in-chief, the
People examined Loan Craig, the Progressive claim representative who
processed Lee’s October 9, 2014 claim regarding the scratch damage to his
Porsche. Craig testified that Lee’s insurance policy entitled him to a rental

5
car benefit while his Porsche was being repaired. Upon hearing from Lee
that he was taking the Porsche to be repaired in Colorado, Craig authorized a
$720 payment to provide Lee with a rental car for 18 days. When Craig was
asked to view photographs of the Porsche taken after Lee’s rental car had
been returned, she testified that they depicted the same scratch damage that
Lee supposedly had repaired.
The defense evidence as to the Progressive claim consisted of the
testimony of both Lee and John May. The owner of an auto shop in Colorado,
May testified that Lee’s Porsche was brought to him in early November 2014.
According to May, there was no time for him to repair the scratch damage
after an initial wet-sanding proved unsuccessful. May kept no records as to
the Porsche and charged no fee for the wet-sanding. For his part, Lee
testified that a friend had driven the Porsche to May’s shop at Lee’s request.
The People cross-examined Lee about his finances. A commercial pilot,
Lee moved from Colorado to California in 2014 to work for Air Methods, who
led Lee to believe he would earn more money in California than he ultimately
did. The prosecutor showed Lee a November 12, 2014, e-mail in which Lee
complained about his compensation to management at Air Methods. Having
referred to the e-mail, Lee testified that at the time he sent the e-mail, he
had made $37,000 year-to-date, an income he described as “pretty pitiful.” In
argument, the prosecutor recounted Lee’s financial problems, telling the jury
that “money was tight,” so the Lees “invented an insurance claim.”
On December 10, 2018, the jury found both Lee and his wife guilty as
charged.
C. The Restitution Order
On December 20, 2019, the trial court ordered Lee to pay restitution to
his victims. In addition to the money Lee owed Progressive, Lee was ordered

6
to pay Homesite $18,000 for the economic loss caused by Lee’s fraudulent
theft claim, as well as $64,280.03 in attorney fees. At the December 20, 2019
hearing, the trial court rejected Lee’s argument that the terms of his earlier,
March 2018 settlement with Homesite precluded the court from ordering Lee
to pay attorney fees.
These appeals followed.
DISCUSSION
The instant consolidated appeal challenges both Lee’s conviction and
the restitution order that followed. As to the judgment of conviction, Lee
argues that it rested on five reversible errors: (1) the trial court’s denial of
Lee’s motion to suppress the evidentiary fruits of the Gmail warrant; (2) the
trial court’s denial of Lee’s motion to recuse the Contra Costa County District
Attorney’s Office; (3) prosecutorial misconduct; (4) insufficient evidence of
any fraud perpetrated against Progressive; and (5) cumulative error. As to
the restitution order, Lee contends that the terms of the civil settlement
precluded the trial court from ordering restitution for Homesite’s attorney
fees and that a significant portion of those fees were neither “reasonable” nor
“costs of collection” under section 1202.4, subdivision (f)(3)(H). We reject
these arguments and affirm both the judgment and the restitution order.2
I.
There Was No Error in the Trial Court’s Denial of Lee’s
Motion to Suppress.
Lee argues that the trial court erred in its March 5, 2019 denial of Lee’s
motion to suppress evidence seized under the search warrant for his Gmail

2
Because Lee does not prevail on the merits, we do not reach the
People’s contention that Lee’s arguments against the judgment were
rendered moot on October 21, 2021, when Lee’s case was terminated upon his
successful completion of probation.

7
account. According to Lee, that motion should have been granted because the
affidavit attached to the search warrant failed to establish any “fair
probability” that he had engaged in unlawful conduct and because the
warrant was overbroad. Neither argument persuades.
A. The Search Warrant Affidavit Satisfied the “Probable Cause”
Requirement.
Lee contends that the Gmail warrant was constitutionally deficient
because it was unsupported by probable cause. The Fourth Amendment to
the United States Constitution provides that “no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation.” “In reviewing a
search conducted pursuant to a warrant, an appellate court inquires ‘whether
the magistrate had a substantial basis for concluding a fair probability
existed that a search would uncover wrongdoing.’ ” (People v. Carrington
(2009) 47 Cal.4th 145, 161, quoting People v. Kraft (2000) 23 Cal.4th 978,
1040.) “The magistrate’s determination of probable cause is entitled to
deferential review.” (Ibid.)
Here, probable cause was established in abundance by an affidavit
sworn by Detective Herndon, a California Department of Insurance detective,
certified public accountant and certified fraud examiner. In the affidavit,
Herndon describes the origins and course of his investigation into the theft
claim made by Lee against his renter’s insurance policy with Homesite.
Herndon then recounts the facts underlying his suspicion that the theft claim
was fraudulent.
The affidavit’s assertions establish a timeline of Lee’s conduct in the
months surrounding the reported theft. In October 2014, Lee filed one of
“several prior questionable insurance claims,” a “Progressive automobile”
claim by which Lee “obtained payment . . . for a rental car.” Lee had received
the rental car benefit “only because he claimed his” scratched Porsche “was

8
being fixed.” After the rental car had been returned, Lee’s claim about fixing
the Porsche was apparently contradicted by the observations of a peace
officer who noted that the Porsche “had scratch damage all the way around
the car.” Such damage was “consistent with the Progressive claim in October
2014,” leading Detective Herndon to believe that “Lee did not have the
[Porsche] repaired” at all and thus had received payment for the rental car
under “fraudulent and false pretenses.” (Italics omitted.)
On February 2, 2015, Lee and his wife rented a storage unit. Eight
days later, on February 10, they reported the alleged property theft to the
police and Homesite. The condominium from which Lee’s property had been
removed “was . . . immaculately clean,” “there was no evidence of forced
entry,” and “nearly every piece of property was taken . . . except for the high-
end appliances that belonged to the property owner.” On February 21—11
days after the reported theft—Lee closed out the rented storage unit. He
rented a new storage unit five days later on February 26, “near his reported
residence in Menlo Park,” telling the storage facility manager that the unit
would be used for “wheels.” On May 19, Lee and his wife settled their
insurance claim with Homesite for $18,000. The next day, Lee moved his
property out of the Menlo Park storage unit. As Lee removed his property,
the storage facility manager saw “household and bedroom items,” not wheels.
Detective Herndon’s affidavit also highlights three facts related to the
$18,000 settlement. First, Lee had initially estimated his loss to be over
$100,000. Second, he only agreed to settle and settled for a relatively small
amount “[a]fter he was notified that his case was being investigated.” And
third, Lee’s attorney claimed he was owed “about $15,000” for his work on the
case, leaving Lee a balance of only “$3,000 to cover his alleged loss.”

9
 Thus, the affidavit provides more than “ ‘a substantial basis for
concluding a fair probability existed that a search would uncover
wrongdoing.’ ” (People v. Carrington, supra, 47 Cal.4th at p. 161.) It is
entirely reasonable to infer from the facts Detective Herndon relayed that
Lee moved his property into storage, filed a theft claim with Homesite, and
then removed the property from storage once Homesite had settled the claim
and Lee believed the danger of any investigation had passed. In short, the
affidavit establishes probable cause to believe that Lee committed insurance
fraud.
Seeking to avoid this conclusion, Lee provides a series of innocent
explanations for the factual assertions contained in Detective Herndon’s
affidavit. Such explanations, however, are irrelevant to the inquiry here: “In
assessing the affidavit’s facts it is possible to imagine ‘[s]ome innocent
explanation. . . . But “[t]he possibility of an innocent explanation does not
deprive the [magistrate] of the capacity to entertain a reasonable
suspicion.” ’ ” (People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784, quoting
People v. Kershaw (1983) 147 Cal.App.3d 750, 759-760.)
For that reason, we conclude that the warrant to search Lee’s Gmail
account was supported by probable cause.
B. The Trial Court Properly Denied Lee’s Motion to Suppress,
Regardless of Whether the Warrant Was Overbroad.
The second defect Lee ascribes to the Gmail warrant is overbreadth.
“ ‘It is axiomatic that a warrant may not authorize a search broader than the
facts supporting its issuance.’ ” (People v. Nguyen (2017) 12 Cal.App.5th 574,
581.) “Whether a warrant’s description of property to be seized is sufficiently
particular is a question of law subject to independent review by an appellate
court. [Citation.] In considering whether a warrant is sufficiently particular,
courts consider the purpose of the warrant, the nature of the items sought,

10
and ‘the total circumstances surrounding the case.’ [Citation.] A warrant
that permits a search broad in scope may be appropriate under some
circumstances, and the warrant’s language must be read in context and with
common sense.” (People v. Eubanks (2011) 53 Cal.4th 110, 133-134.)
Even where the scope of a warrant is overbroad, suppression of
evidence is not a proper remedy if the search falls within the “good faith
exception” to the exclusionary rule first articulated in United States v. Leon
(1984) 468 U.S. 897 (Leon). Under Leon, evidence seized pursuant to an
overbroad warrant will only be suppressed if “a reasonably well trained police
officer would have concluded the warrant was so facially deficient that he or
she, as executing officer, could not reasonably presume it to be valid.” (Bay v.
Superior Court (1992) 7 Cal.App.4th 1022, 1030.)
Here, Lee finds overbreadth in the Gmail warrant’s purported
authorization to search “all of [his] personal emails” for the time period under
investigation, a scope Lee argues should have been limited only to “emails
referring to the Homesite Insurance theft claim.” However, Lee fails to cite
any binding authority that supports his position. He discusses In re Ricardo
P. (2019) 7 Cal.5th 1113 and In re Alonzo M. (2019) 40 Cal.App.5th 156, but
both of these cases dealt with probationers subject to certain electronic search
conditions, and the courts struck those conditions not because they were
unconstitutionally overbroad, but because they were invalid under People v.
Lent (1975) 15 Cal.3d 481.
As for the federal appellate cases upon which Lee relies, for the most
part they involve warrants with more serious overbreadth problems than the
ones alleged here. In United States v. Kow (9th Cir. 1995) 58 F.3d 423, 427,
for example, the Ninth Circuit Court of Appeals determined that a warrant
was overbroad where “[m]uch of the information in the affidavit relate[d] to

11
alleged acts of violence” with “no apparent connection to the business
documents sought in the warrant.” In contrast, the affidavit supporting the
Gmail warrant focuses narrowly on Lee’s two fraudulent insurance claims
and shows how Lee used the Gmail address in connection with both. And
unlike the warrant in Kow, whose authorization to seize seven years of tax
returns was the only authorization “limited as to time,” the Gmail warrant
authorized the seizure of only seven months of materials. (See id. at p. 428.)
Further, even where federal cases are more directly applicable than Kow,
they “provide persuasive rather than binding authority.” (People v. Bradford
(1997) 15 Cal.4th 1229, 1292.) Finally, we note that Lee does not discuss any
case involving the application of the overbreadth doctrine to a search warrant
for e-mails.3
Evidence will not be suppressed “ ‘when an officer acting with objective
good faith has obtained a search warrant from a judge or magistrate and
acted within its scope,’ even if the warrant was subsequently invalidated.”
(People v. Macabeo (2016) 1 Cal.5th 1206, 1220, quoting Leon, supra, 468 U.S.
at p. 920.) Here, the Gmail warrant was supported by an affidavit
establishing probable cause to believe that the Gmail address to be searched
was itself an instrumentality of Lee’s criminal conduct. The warrant’s scope
was limited to a six-month period encompassing Lee’s two suspected

3
In recent years, the Legislature has acted to remedy the apparent
scarcity of such authority. Warrants like the Gmail warrant are now
governed by the California Electronic Communications Privacy Act of 2016
(§ 1546 et seq. (CalECPA)). Section 1546.1, subdivision (d)(1), of that law
provides that such warrants must “describe with particularity the
information to be seized by specifying, as appropriate and reasonable, the
time periods covered, the target individuals or accounts, the applications or
services covered, and the types of information sought . . . .” Because the
CalECPA does not apply retroactively, we do not discuss it further here. (Cf.
People v. Sandee (2017) 15 Cal.App.5th 294, 305, fn. 7.)

12
fraudulent claims. And binding legal authority suggesting that the warrant
is overbroad eludes even Lee’s appellate counsel. Under such circumstances,
it strains credulity to suggest that a “reasonably trained officer would have
concluded that the warrant was so facially deficient that he or she, as
executing officer, could not reasonably presume it to be valid.” (Bay v.
Superior Court, supra, 7 Cal.App.4th at p. 1030.)
Thus, because the seized evidence falls within the Leon exception to the
exclusionary rule, the trial court properly denied Lee’s motion to suppress the
evidentiary fruits of the Gmail warrant.
II.
The Trial Court Did Not Abuse Its Discretion in Denying Lee’s Motion
to Recuse the Contra Costa County District Attorney’s Office.
Lee argues that the trial court erred in its denial of Lee’s motion to
recuse the Contra Costa County District Attorney’s Office. Section 1424,
subdivision (a)(1) provides that such a motion “may not be granted unless the
evidence shows that a conflict of interest exists that would render it unlikely
that the defendant would receive a fair trial.” Thus, the “ ‘statute
“articulates a two-part test: ‘(i) is there a conflict of interest?; and (ii) is the
conflict so severe as to disqualify the district attorney from acting?’ ” ’
[Citation.] The defendant ‘bear[s] the burden of demonstrating a genuine
conflict; in the absence of any such conflict, a trial court should not interfere
with the People’s prerogative to select who is to represent them.’ [Citation.]
That burden is especially heavy where, as here, the defendant seeks to recuse
not a single prosecutor but the entire office.” (People v. Trinh (2014) 59
Cal.4th 216, 229.) We defer to the trial court’s findings of fact if they are
supported by substantial evidence and review its decision based on those
facts under the deferential abuse of discretion standard. (People v. Eubanks
(1996) 14 Cal.4th 580, 594.)

13
 Lee’s accusation of bias on the part of the Contra Costa District
Attorney’s Office rests on the following two factual claims: (1) that Greg
Chiarella, the deputy district attorney who prosecuted Lee’s case,
“manufactured a pretext” for the July 16, 2018 yacht warrant; and (2) that
the same prosecutor failed “to dispassionately exercise his prosecutorial
discretion in plea bargaining.”
The yacht warrant was issued based on evidence suggesting that Lee
had physically abused his wife and was planning to have Chiarella killed.
Lee argues that because the district attorney’s office ultimately concluded
there was insufficient evidence to merit filing charges based on the threats,
the entire investigation into the threats was a ruse for harassing Lee. He
contends the prosecuting attorney in the insurance fraud case, Chiarella,
fabricated the threat accusation as part of a plot to have Lee arrested, have
his yacht and electronics searched and have his wife interviewed without
counsel, “all on the eve of trial, to shake up Lee and strengthen the
prosecution’s hand.” As for Chiarella’s purported failure to “dispassionately
exercise his prosecutorial discretion in plea bargaining,” Lee contends that if
Chiarella was not so “personally and emotionally embroiled in this case,” he
would have agreed to a misdemeanor plea.
The problem with Lee’s arguments on appeal is that they ignore
entirely the trial court’s findings and the evidence supporting them.
We begin with the trial court findings. The court concluded Lee had
not met his burden of demonstrating any bias or conflict of interest. The
court found, “there’s nothing here before me that shows any type of bias,
motive, or any other type of ill will towards either Mr. Lee or Ms. Lee that
would require recusal of either the office or the individual attorney.”

14
 Substantial evidence supports the trial court’s finding. The warrant
affidavit sworn by Senior Investigator Garcia and his declaration in
opposition to the recusal motion laid out the following facts. Garcia was
contacted by Lieutenant Medina of the Homicide/Gang Unit of the district
attorney’s office and asked to assist in an investigation of potential death
threats against a prosecutor assigned to a fraud case and his supervisor.
Garcia spoke with Chiarella, who recounted a telephone call he had received
from an FBI special agent about those threats. The targets of those threats,
Chiarella and his supervising attorney, worked for the Special Operations
Division, and Garcia had never worked for them, had no cases with them and
did not work in their chain of command.
Crucially, it was Garcia, not Chiarella, who investigated the threats
and worked with the FBI and the Alameda Police Department. Garcia spoke
to the FBI agent who had first reported the threats and learned the FBI had
been made aware of the threats by Christopher Coco, the boyfriend of Lee’s
wife. Coco had reported it to a close friend who was an FBI inspector. Joined
by two senior FBI inspectors, Garcia met with Coco in person. In the
recorded interview that followed, Coco confirmed that he was informed by
Lee’s wife that “Lee told her that there was a safe full of money . . . that could
be used to hit or kill the prosecutor in his case rather than deal with it.”
According to Coco, Lee’s wife “thought maybe [Lee] would be using” that
money “to facilitate the hit.” Coco also told Garcia and the FBI agents about
multiple instances in which he saw injuries resulting from domestic violence
Lee’s wife said Lee had committed. After the interview, the FBI agents tried
to convince Lee’s wife to talk with them and to provide a statement, but she
was frightened and refused. Garcia spoke with other witnesses who
witnessed Lee’s wife bleeding and heard from her that Lee had assaulted her

15
and taken away her cellphone and computer, and later that day Lee was
arrested for domestic violence.
After the conclusion of Garcia’s investigation into the threats, which led
to a search warrant and seizure of cash and electronic devices, he submitted
the investigation to the Felony Filing Deputy, who worked independently
from the Special Ops Division and the Gang/Homicide Unit. That deputy
advised him there was insufficient evidence to file charges based on the
threats, and Garcia returned all property seized under the warrant to Lee.
The declarations allow no room for an inference that Chiarella
“manufactured” the alleged threats to gain some advantage in the insurance
fraud prosecution.4 Rather, they provide substantial evidence supporting the
trial court’s findings that there was no bias or conflict of interest. The trial
court thus acted well within its discretion when it denied Lee’s motion.

4
In support of his contention that Chiarella manufactured a pretext
for the yacht warrant, Lee further argues that Chiarella “expressly linked his
request for a search warrant to plea bargaining negotiations in the insurance
[fraud] case, where Lee was attempting to have the case reduced to a
misdemeanor.” From this, Lee concludes that “Chiarella was not walled off
from the [yacht] warrant incident” and that, “[o]n the contrary, he instigated
it.” This is, to put it charitably, creative speculation. Garcia’s affidavit in
support of the warrant does not support Lee’s theory. Chiarella told Garcia
that Lee “was a commercial pilot and that he was trying to get the charges
reduced to a misdemeanor as he would lose his pilot’s license if convicted of a
felony.” But this remark follows a discussion of the threats allegedly made by
Lee and in context suggests only that Chiarella was informing Garcia of a
possible motive for Lee’s alleged “threats to harm if not kill” Chiarella, who
was taking to trial a case Lee might have wanted desperately to settle. Nor
do Garcia’s affidavits provide any support for Lee’s bald assertion that
Chiarella was acting out of bias by declining to agree to a misdemeanor plea
in the insurance fraud case.

16
 III.
Lee Has Failed to Preserve Any Claim of Prosecutorial Misconduct.
Lee argues that the prosecutor engaged in misconduct by “eliciting
testimony concerning [Lee’s] financial condition, and then underscoring this
testimony in his summation as a motive for crime.” Indeed, “[u]nder the well-
established rule, a defendant’s poverty generally may not be admitted to
prove a motive to commit a robbery or theft; reliance on such evidence is
deemed unfair to the defendant, and its probative value is outweighed by the
risk of prejudice.” (People v. Koontz (2002) 27 Cal.4th 1041, 1076.) Here, the
People cross-examined Lee about his income, which was lower than he
expected around the time Lee filed the theft claim. Citing Lee’s testimony in
this regard, the People argued that “money was tight,” so Lee “invented the
insurance claim.”
However, claims of prosecutorial misconduct are waived “[i]f the
defendant fails to object to the asserted misconduct and does not request an
instruction or admonition to lessen any possible prejudice . . . .” (People v.
Nguyen (1995) 40 Cal.App.4th 28, 36, citing People v. Ghent (1987) 43 Cal.3d
739, 762.) Here, there was no such objection or request for an admonition,
and for that reason, the issue is waived.
As for Lee’s contention that his trial counsel did object to alleged
misconduct, the record indicates otherwise. We find no objection in the
request by Lee’s counsel to approach the bench in order to view a late 2014
e-mail Lee wrote to his employer, in which Lee complains about his
compensation. In fact, Lee’s counsel made no objection while the People
asked Lee nearly a dozen questions about his income. Only when the People
asked Lee how he would “characterize the tone” of the e-mail did Lee’s
counsel object “to the substance of” the question, citing Evidence Code section

17
352, subdivision (a). Then, after Lee testified that he “wouldn’t go that far”
as to characterize the e-mail as “angry,” Lee’s counsel objected again, this
time to the People’s attempt to impeach Lee’s testimony by reading the
e-mail’s text. In both cases, the questions to which Lee’s counsel objected
concerned Lee’s feelings toward his employer, not his finances. Lee’s counsel
failed to object to questions about Lee’s finances, failed to cite in his
objections to other questions the prosecutorial misconduct alleged here, and
failed to request a curative instruction or admonition. In short, he failed to
preserve the issue for appeal.
In his reply brief, Lee argues belatedly that such a failure should be
deemed ineffective assistance of counsel. “ ‘Points raised in the reply brief for
the first time will not be considered, unless good reason is shown for failure
to present them before.’ ” (People v. JTH Tax, Inc. (2013) 212 Cal.App.4th
1219, 1232.) Here, where no such good reason has been shown, we decline to
consider Lee’s claim of ineffective assistance of counsel. Thus, Lee has shown
no reversible error in this respect.
IV.
Sufficient Evidence Supports Counts 8 and 9.
By convicting Lee of counts 8 (§ 550, subd. (a)(1)) and 9 (§ 550,
subd. (b)(1)), a jury found beyond a reasonable doubt that Lee defrauded
Progressive by availing himself of a rental car under false pretenses. On the
instant appeal, Lee argues that there is insufficient evidence to support that
verdict.
“The role of an appellate court in reviewing the sufficiency of the
evidence is limited. The court must ‘review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—

18
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” (People v. Ceja (1993) 4 Cal.4th 1134, 1138, quoting
People v. Johnson (1980) 26 Cal.3d 557, 578.)
Subdivision (a)(1) of section 550 proscribes the knowing presentation of
“any false or fraudulent claim for the payment of a loss or injury, including
payment of a loss or injury under a contract of insurance.” Subdivision (b)(1)
of the same statute forbids the presentation of “any written or oral statement
as part of, or in support of or opposition to, a claim for payment or other
benefit pursuant to an insurance policy, knowing that the statement contains
any false or misleading information concerning any material fact.”
Here, the People’s evidence was sufficient to show that Lee violated
those two statutory provisions. At trial, Progressive claim representative
Loan Craig testified that in October 2014, she was assigned to process the
insurance claim Lee made for scratch damage to his Porsche. According to
Craig, Lee e-mailed her after Progressive wrote Lee a check for the scratch
damage, stating that he planned to bring the Porsche to an auto shop and
asking to arrange a car rental for the duration of the repairs. Lee then told
Craig that he was in Colorado where he was having the Porsche repaired and
would need a larger rental car to accommodate visiting relatives. Based on
those representations, Progressive ultimately paid $720 to furnish Lee with a
rental car for 18 days.
Under the terms of Lee’s insurance policy, such a benefit was
authorized only on the condition that his Porsche was at the auto shop.
However, photographs taken after the rental car was returned showed that
the scratch damage to Lee’s Porsche was never repaired. Moreover, Lee
admitted at trial that he lied to Craig when he told her he was “in Colorado
right now[,] dropping” off the Porsche. From this testimony, a reasonable

19
trier of fact could conclude that neither Lee nor anyone else ever took the
Porsche to the auto shop. It would follow that Lee’s claim for the rental car
benefit was fraudulent under section 550, subdivision (a)(1), and that Lee
misled Craig as to a material fact under section 550, subdivision (b)(1),
causing Craig to believe erroneously that the Porsche was being taken to the
auto shop for repairs. Substantial evidence thus supports the verdict.
In support of his argument to the contrary, Lee cites his own testimony
as well as the testimony of Colorado auto shop owner John May. Although he
told Craig he was in Colorado dropping off the Porsche, Lee testified at trial
that he had a friend take the Porsche to the shop in Colorado. May testified
that he received the Porsche and tried unsuccessfully to wet-sand away the
scratch damage, ultimately leaving the Porsche unrepaired because he had
no time to perform further work. Lee was not charged for the wet-sanding,
and May kept no records of the Porsche’s purported presence in his shop.
“In deciding the sufficiency of the evidence, a reviewing court resolves
neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Accordingly, we do not resolve the apparent conflict between the testimony of
Lee and May, on one hand, and the People’s evidence suggesting that the
Porsche was never taken in for repairs, on the other. The jury resolved that
conflict in favor of the People’s evidence and that resolution will not be
disturbed on appeal.
In sum, substantial evidence supports the verdict as to counts 8 and 9.

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 V.
There Was No Cumulative Error.
Lee’s final argument concerning the judgment of conviction alleges
cumulative error, whereby the “combined effect of [multiple] errors
substantially impaired his constitutional right to a fair trial.” (People v.
Cuccia (2002) 97 Cal.App.4th 785, 795.) Here, where we have found no
reversible error and, for the most part, have concluded there was no error at
all,5 no question of cumulative error can arise.
VI.
There Was No Abuse of Discretion in the Trial Court’s
Order for Restitution.
As part of the restitution order entered after Lee’s conviction, he was
ordered to repay Homesite the $18,000 it had paid him to settle the
fraudulent theft claim against Lee’s renter’s insurance policy. In addition,
Lee was ordered to pay Homesite $64,280.03 in attorney fees. Lee argues the
restitution order’s inclusion of attorney fees is barred for two reasons. He
contends the terms of an intervening civil settlement between him and
Homesite barred the court from ordering him to provide Homesite any
further recovery and, in the alternative, that the fees were not “reasonable
. . . costs of collection” within the meaning of the restitution statute.
(§ 1202.4, subd. (f)(3)(H).) Reviewing the trial court’s order for abuse of
discretion, we are not persuaded by either argument. (People v. Grandpierre
(2021) 66 Cal.App.5th 111, 115.)

5
We have not reached the issue whether the prosecutor’s cross-
examination of Lee regarding his finances constituted error, having
concluded that the defendant failed to preserve that claim of error.

21
 A. The Trial Court’s Discretion to Order Restitution for
Attorney Fees Was Unaffected by Lee’s March 2018
Settlement with Homesite.
In May 2015, Homesite settled Lee’s theft claim for $18,000. Nearly
three years later in March 2018, Lee agreed to pay Homesite $18,000 to settle
any civil lawsuits related to the theft claim, with “each side to bear its own
attorneys’ fees and costs.” According to Lee, the trial court should have “held
[Homesite] to the terms” of that settlement agreement and declined to order
restitution for attorney fees.
Section 1202.4, subdivision (f), provides in relevant part 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 . . . .” (See also
id., subd. (a)(1).) “The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so . . . .” (Id., subd. (c).)
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 . . . .” (Id., subd. (f)(3).)
“Actual and reasonable attorney’s fees and other costs of collection accrued by
a private entity on behalf of the victim” are among the determined economic
losses properly addressed by a restitution order. (Id., subd. (f)(3)(H).)
In People v. Grundfor (2019) 39 Cal.App.5th 22, 25 (Grundfor), the
Second District considered whether a trial court could order restitution for
the attorney fees of a victim when a civil “settlement agreement the victim
signed preclude[d] her recovery of attorney fees.” The Grundfor court
affirmed the restitution order, observing that a settlement with an insurance
company “and the state’s right to compel [a defendant] to pay restitution

22
operate independently of each another.” (Id. at p. 28.) The former may
relieve a party “from further civil liability,” but it does “not relieve him from
paying criminal restitution.” (Ibid.) Thus, the March 2018 settlement
agreement here released Lee from civil liability as to the fees charged by
Homesite’s attorneys, but it did not bar the state from ordering Lee to pay
restitution for those fees.
Lee urges us to read Grundfor narrowly to apply only where—as in
Grundfor—the victim received only a partial settlement for the injury caused
by the defendant’s criminal conduct. But there is no such limitation in the
categorical distinction Grundfor draws between the civil law of contract, on
one hand, and the constitutional and criminal restitution scheme, on the
other. (Grundfor, supra, 39 Cal.App.5th at p. 28.) As for Lee’s appeal to the
state’s public policy interest in enforcing the terms of settlement agreements,
it will suffice to note that the state has an even greater interest in preventing
contracts which “exempt any one from responsibility for his own . . . violation
of law.” (Civ. Code, § 1668.) Here, where Lee’s conduct violated the criminal
law, he cannot contract away his criminal liability.
B. The Attorney Fees Were Reasonable Costs of Collection.
Section 1202.4, subdivision (f)(3)(H), authorizes restitution for
“reasonable attorney’s fees and other costs of collection accrued by a private
entity on behalf of the victim.” Citing this authority, Lee argues that any
attorney fees billed after the March 2018 settlement agreement were
unreasonable because “Homesite had no reason to involve itself in the
criminal case.”
Not so. At the time the restitution order was entered on December 20,
2019, Lee had still not paid Homesite the $18,000 he owed under the
March 2018 settlement agreement. And a restitution order is “ ‘enforceable
as a civil judgment.’ ” (People v. Guardado (1995) 40 Cal.App.4th 757, 762.)

23
Thus, by aiding the prosecution of Lee’s criminal case, Homesite’s attorneys
helped to secure a conviction and in turn, a restitution order having the same
effect as a civil judgment. By virtue of those efforts, Homesite’s attorneys put
Homesite in a better position to collect the $18,000 it was already owed. For
that reason, their fees were “reasonable . . . costs of collection” under section
1202.4, subdivision (f)(3)(H).
In sum, the trial court did not abuse its discretion in ordering Lee to
pay restitution for the attorney fees incurred by Homesite.
DISPOSITION
We affirm both the judgment and the restitution order in their entirety.

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 _________________________
STEWART, Acting P.J.

We concur:

_________________________
MILLER, J.

_________________________
MAYFIELD, J.*

People v. Lee (A158225, A159872)

*
Judge of the Mendocino Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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