Filed 7/1/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307916
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA106567)
v.
OBADIAH GRANDPIERRE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Terry Lee Smerling, Judge. Affirmed as
modified.
Jolene Larimore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Obadiah Grandpierre challenges the court’s restitution
order, which we affirm, with two modifications. References to
statutes are to the Penal Code.
I
Grandpierre inflicted thousands of dollars of damage by
stealing Shawn Vessels’s identity.
Police saw Grandpierre at an ATM while a codefendant sat
in Grandpierre’s running car. Police found $2,480 in cash and 16
debit cards on Grandpierre. They found one credit card reader in
the car and another in the codefendant’s hotel room. The
codefendant is not a party to this appeal.
A felony complaint alleged Grandpierre and the
codefendant committed two counts of identity theft (§ 530.5, subd.
(a)) and one count of forgery of an access card (§ 484f, subd. (a)).
One identity theft count alleged the defendants used personal
identifying information about Vessels for an unlawful purpose.
Grandpierre pleaded no contest to the three counts. The
court suspended imposition of the sentence and ordered three
years of formal probation.
The court held a restitution hearing on September 10,
2020.
At the restitution hearing, Vessels testified about the
crime’s impact. Vessels owned 30 percent of a company called
Electrical Advantage Engineering (“Engineering”). He sought
restitution for himself and the company.
Ultimately, the court awarded restitution for 19 hours of
lost time. The question in this case is whether and how to put a
dollar value on this lost time. We describe this lost time in more
detail.
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There was a 12-hour portion and a different seven-hour
portion.
Vessels spent 12 hours on the phone dealing with issues
related to this case involving his credit and his business phone
number. These were “business hours.” “[T]he time spent would
have been billable hours, had [he] been able to focus on [his]
business instead of dealing with this.” Vessels bills clients $195
per hour. The company lost $2,340, 12 hours multiplied by $195.
Vessels ultimately worked these 12 hours outside usual work
hours.
Later in the hearing, Vessels said, “honestly, there was
more than 12 hours spent on this. That was just during business
hours. I probably spent closer to 30 hours dealing with a variety
of agencies and things.”
We now come to the seven-hour portion.
Separate from the loss to Engineering, Vessels claimed
personal loss. He used one sick day. That day was worth $420,
seven hours multiplied by $60.
Grandpierre disputed the restitution to Engineering
because Vessels testified he ultimately worked the 12 hours.
Grandpierre argued Engineering must have billed the 12 hours
when Vessels performed the work outside usual work hours, so
the company did not lose $2,340.
The trial court responded to Grandpierre’s argument by
saying Vessels “was greatly inconvenienced.” Grandpierre said,
“I don’t doubt that, but the value of his inconvenience is not 195
an hour.” The court explained, “Arguably. But the time he
worked off hours, he could have been doing other things. He
could have been billing for other people.” The prosecution said
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Vessels was “still losing time, and time is valuable to him, and
that’s his company’s loss.”
The trial court orally granted Vessels’s full request: $420
to Vessels for the seven hours and $2,340 to Engineering for the
12 hours. The minute order incorrectly lists the amount to
Engineering as $2,760.
Grandpierre appeals the 12-hour restitution award to
Engineering. He does not challenge the seven-hour $420 award
to Vessels.
II
The trial court’s restitution award was not an abuse of
discretion.
A
The California Constitution requires courts to order
restitution in every case in which a crime victim suffers a loss.
(Cal. Const., art. I, § 28, subd. (b)(13)(B).) Statutory provisions
implement this constitutional directive. Restitution is “based on
the amount of loss” the victim claims and should “fully
reimburse” the victim for every economic loss the defendant’s
criminal conduct caused. (§ 1202.4, subd. (f).) A corporation,
partnership, or other commercial entity is entitled to restitution
if it is a direct victim of a crime. (Id., subd. (k)(2).) Lost wages or
lost profits due to a victim’s injury are compensable. (Id., subd.
(f)(3)(D).) Expenses to make a victim of identity theft whole are
also compensable. (Id., subd. (f)(3)(L).)
Courts have liberally construed victims’ right to restitution.
(People v. Stanley (2012) 54 Cal.4th 734, 737.) We expansively
interpret the meaning of “economic loss.” (In re Alexander A.
(2011) 192 Cal.App.4th 847, 854, fn. 4.)
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The standard of proof at a restitution hearing is
preponderance of the evidence. (People v. Gemelli (2008) 161
Cal.App.4th 1539, 1542.) A victim’s statement of economic loss is
prima facie evidence of loss. (Id. at p. 1543.) To rebut a prima
facie case, the defendant has the burden to disprove the amount
of losses the victim claimed. (Ibid.)
We review a victim restitution order for abuse of discretion.
(People v. Giordano (2007) 42 Cal.4th 644, 663.) The scope of a
trial court’s discretion is broader when restitution is a condition
of probation. (Id. at p. 663, fn. 7; cf. People v. Carbajal (1995) 10
Cal.4th 1114, 1121 [trial courts have discretion to order
restitution as condition of probation even when loss not
necessarily caused by criminal conduct underlying conviction].)
There is no abuse of discretion unless the court’s ruling falls
outside the bounds of reason. (Giordano, at p. 663.)
B
The court did not abuse its discretion by awarding
restitution to Vessels and Engineering. Vessels’s testimony was
prima facie evidence of loss to him and his company.
Grandpierre failed to disprove these losses or to provide a viable
alternative theory of valuation.
The $420 restitution order to Vessels was proper.
Grandpierre does not challenge this award. Vessels lost seven
work hours correcting harm Grandpierre directly caused. This
loss was an economic loss. Vessels was entitled to lost wages.
(§ 1202.4, subd. (f)(3)(D).)
The court did not abuse its discretion by ordering $2,340
restitution to Engineering. Engineering was a direct victim
because Grandpierre’s actions affected the business’s phone
number. Vessels’s testimony about using 12 work hours he could
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have billed at $195 per hour was enough to show by a
preponderance of the evidence Engineering suffered the $2,340
loss. The 12 hours were real and are gone. Vessels’s testimony
created a prima facie case for restitution for Engineering.
Grandpierre urges us to reverse and to strike the
restitution to Engineering because Vessels offset the loss when he
worked 12 hours outside his usual work hours. As the
prosecution suggests, Vessels could have used those 12 hours to
bill other clients and earn money for Engineering. The inference
an employee would perform work during off-hours is apt,
certainly for an employee-owner like Vessels.
Grandpierre did not give the trial court a better theory
than did Vessels for how to value this time. Following
Grandpierre’s logic, Vessels’s mitigating act erased all economic
loss. His theory values the 12 hours at $0. This stance
improperly takes a narrow view of economic loss. Grandpierre
had the burden to disprove Vessels’s claims of loss to
Engineering. He did not satisfy this burden.
Vessels’s act of working during off-hours is analogous to a
victim’s mitigation or recoupment from other sources. These
actions do not foreclose restitution.
For example, in People v. Dalvito (1997) 56 Cal.App.4th 557
(Dalvito), the Court of Appeal rejected a defendant’s argument a
victim of a theft who mitigated his loss through bankruptcy
suffered no economic loss. At the time of the theft, the victim had
not yet paid for the stolen item, a necklace. He later declared
bankruptcy, which discharged his debt for the necklace. The
court affirmed the trial court’s restitution award for the value of
the necklace to the victim. (Id. at pp. 559–560, 562.)
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The Dalvito court offered three reasons to reject the
defendant’s argument restitution was an improper windfall for
the victim. First, filing for bankruptcy did not necessarily make
the victim whole. Second, relieving the defendant of the
obligation to pay for the stolen necklace would give the defendant
a windfall. Third, it would be anomalous for a defendant’s
responsibility to make restitution to turn on whether his victim
sought shelter in bankruptcy before the restitution hearing.
(Dalvito, supra, 56 Cal.App.4th at p. 562.)
Dalvito’s reasoning applies to Vessels’s mitigation of
Engineering’s loss. Vessels’s extra work did not necessarily make
Engineering whole for, as we explained, Vessels could have done
other work for Engineering during that time. Grandpierre would
receive a windfall if we value the 12 hours Vessels worked to
remedy Grandpierre’s harm at $0. And it would be anomalous to
make a defendant’s responsibility to make restitution to a
company turn on whether the company’s workers were
conscientious enough to work during off-hours.
Recoupment cases also support our conclusion. “[D]irect
victims of crime have a statutory right to restitution on the full
amount of their losses without regard to the full or partial
recoupment from other sources (except the state Restitution
Fund).” (People v. Baker (2005) 126 Cal.App.4th 463, 468; see
also ibid. [victim of cattle theft entitled to restitution for value of
cattle despite victim recovering and selling the cattle]; People v.
Birkett (1999) 21 Cal.4th 226, 247 [immediate victim entitled to
full amount of loss defendant’s crime caused, regardless of
whether victim had purchased private insurance that covered
some or all of the same losses]; § 1202.4, (f)(2) [third party’s
indemnification or subrogation rights shall not affect the amount
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of restitution].) These precedents show economic loss does not
disappear simply because the victim manages to recover some of
its losses.
The trial court did not abuse its discretion by calculating
loss to Engineering notwithstanding Vessels’s efforts to make up
lost work hours for the company.
C
The minute order incorrectly says the court ordered $2,760
to Engineering. The court orally pronounced an award of $2,340
to Engineering and this oral pronouncement controls. (People v.
Mesa (1975) 14 Cal.3d 466, 471.) The prosecution concedes
$2,340 is the correct amount and says we should order the trial
court to correct the error. The minute order also incorrectly says,
“Counsel and the defendant stipulate to the above amount.” We
direct the trial court to remove this sentence and to amend the
minute order to reflect the correct amount of restitution to
Engineering.
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DISPOSITION
We direct the trial court to correct the restitution amount
to be $2,340 to Electrical Advantage Engineering and $420 to
Shawn P. Vessels and to remove from its order the sentence
“Counsel and the defendant stipulate to the above amount.” In
all other respects, the order is affirmed.
WILEY, J.
We concur:
GRIMES, Acting P. J.
OHTA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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