IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A123145

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1 Filed 1/12/11 P. v. Small-Long CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, v. KAREN ANNE SMALL-LONG, Defendant and Appellant. A (Marin County Super. Ct. No. SC147327) Karen Anne Small-Long appeals from a judgment upon her plea of guilty to perjury by declaration (Pen. Code, 1 118, subd. (a)), offering to record a forged instrument ( 115), and misdemeanor use of her official position to influence a governmental decision in which she had a financial interest (Gov. Code, 87100). She contends that the trial court abused its discretion in failing to grant her certain offsets against the restitution order. We remand the matter to the trial court for a determination of offsets to the restitution amount for certain real property but otherwise affirm the judgment. I. FACTUAL BACKGROUND On November 17, 2006, an information was filed alleging that defendant committed 12 offenses: three counts of perjury by declaration ( 118, subd. (a)), two counts of presenting a false claim to a county board or officer ( 72), two counts of offering to record a forged instrument ( 115), conspiracy to commit grand theft ( 182, 1 Unless otherwise indicated, all further statutory references are to the Penal Code. 1

2 subd. (a)(1), 487, subd. (a)), attempted grand theft ( 664, 487, subd. (a)), grand theft ( 487, subd. (a)), theft by false pretenses ( 532, subd. (a)), and misdemeanor use of her official position to influence a governmental decision in which one has a financial interest (Gov. Code, 87100). The charges stemmed from a scheme in which defendant used her position as an employee of the Office of the Marin County Assessor-Recorder to obtain a property tax exemption reassessment for property located in Corte Madera that was to be held in trust for her son, Daniel; and her perjury, forgery of documents, and fraud relating to that property. On July 2, 2007, defendant pled guilty to three of the counts, with the remaining counts being dismissed with a Harvey 2 waiver. As part of the plea agreement, defendant stipulated that she owed Daniel, approximately $724, in restitution related to the Harvey-waived Count 6 [theft by false pretenses]. The stipulation provided that the restitution amount represented the sale price of the home at 33 Hickory, Corte Madera, CA when [defendant] sold it in 2005, minus the $191,666 [she claims she] paid to Trustee/Beneficiary Jean Thompson to settle the Small 1992 Trust. At the sentencing hearing, the court ordered restitution in the stipulated amount of $724,334. The court found that the amount of restitution included the value of the property stolen or damaged and interest at 10 percent per year from the date of February 1, 2006, through October 6, The court reasoned that the documentation provided by defendant was very confusing in its presentation, is summary and conclusory in a lot of respects, and doesn t include original documents in a lot of circumstances. So it is really impossible to audit it and to make any determination on the basis of the numbers there. There are some bills and receipts, but most of the spread sheet information seems to be related to checkbooks and other things that are not here and can t be viewed. The court found that defendant was entitled to a credit against the restitution order for the Georgia property and the value of the Oregon property, but that it had little confidence in the accounting defendant provided. The court noted that defendant or the People could 2 People v. Harvey (1979) 25 Cal.3d

3 seek a hearing at any point during the probation period to address the restitution order. This appeal followed. II. DISCUSSION Relying on People v. Weaver (2007) 149 Cal.App.4th 1301, , the Attorney General moves to dismiss the appeal on the ground that it is premature. In Weaver, the defendant sought to reduce her restitution fine by the amount her insurance company paid the victim of her offense. (Id. at p ) The court held that the restitution fine could not be reduced because the evidence proffered by the victim (a letter from the victim s attorney to her attorney concerning a pending settlement) to support the offset did not prove that the insurance company had actually paid the victim. The court concluded that defendant s contention was premature because she had not sought modification of the fine by requesting a modification hearing pursuant to section , subdivision (f)(1)and obtaining an order from the trial court on that request. (Id. at p ) Defendant opposes the motion, arguing that the Weaver court s holding that the defendant s restitution claim was premature was an alternative ruling because the court had already determined that the evidence did not support the offset. Defendant is correct that although the Weaver court ultimately found the defendant s restitution claim to be premature, it nevertheless addressed the merits of her contention that her evidence was sufficient to support an offset against the restitution fine. While we conclude that defendant s evidence here is deficient to prove the amount of the offset she claims and that she must seek modification below, we address her arguments concerning the documentation she presented in the trial court. At a victim restitution hearing, a prima facie case for restitution is made by the People based in part on a victim s testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] Once the victim has [i.e., the People have] made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.] [Citation.] [ ] The standard of review of a restitution order is abuse of 3

4 discretion. A victim s restitution right is to be broadly and liberally construed. [Citation.] When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court. [Citations.] (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) Here, defendant stipulated that the amount of restitution she owed was $724,334. The parties agreed that defendant would establish a trust for Daniel s benefit that included the proceeds of the sale of the Corte Madera property in order to comply with the restitution order. The court thereafter held a hearing to determine to what extent defendant had transferred assets to the trust to satisfy the restitution order. At the hearing, the prosecutor argued that its trust expert had not been able to determine the value of the assets defendant transferred to the trust from the documentation defendant provided. When pressed by the court for a minimum value, the prosecutor said that the property transferred to the trust totaled approximately $224,000 in value but that defendant had not yet provided a full accounting. 3 The court thus opined that there was approximately $500,000 which was missing for which defendant had not provided an explanation or an accounting. The court, while acknowledging that defendant was due a credit against the restitution owed for the value of the Georgia and Oregon properties that were placed in the trust, did not include a credit in its restitution order because it was unable to determine the amount of the credit, noting that the documentation presented by defendant was confusing, summary, and conclusory. We, too, have reviewed the documentation defendant provided in the trial court, and agree that defendant did not adequately support her entitlement to credits against the restitution order. In addition, we note that the parties have not briefed the issue of what is properly charged against the restitution order, nor was the issue briefed below. The credits that defendant seeks here run the gamut from the cost of the Georgia house including its maintenance and furnishing, the expenses incurred in getting there, and the vehicles. 3 This amount included the values of the Georgia and Oregon properties and two 4

5 costs associated with selling and remodeling the Corte Madera house as well as medical expenses, tuition, and the cost of a computer. 4 There is nothing in the record which sheds light on whether the court deemed any of these expenses as proper charges against the trust and hence, against restitution ordered even assuming the expenses were adequately documented. Defendant concedes that she must return to the trial court to provide better documentation of certain payments, but argues that the documents she presented in the trial court are sufficient to support credits in the amount of $311, We are not persuaded. Defendant s documentation is inadequate. Not only does defendant, in numerous instances, simply state the amount she claims on a spreadsheet, she did not provide an original of the appraisal completed on the Georgia property nor did she adequately document any improvements to that property. Moreover, as the People argued below, many of the expenses defendant claims as a credit against the restitution order are properly charged against defendant and cannot be deemed to be trust expenses, as it appears she simply spent a large portion of the proceeds of the Corte Madera property for her own purposes. Thus, we agree with the trial court that defendant is entitled to a credit against the restitution order for the value of the Georgia and Oregon properties, and we remand the matter to the trial court for a determination of that amount. To the extent defendant seeks an offset for other amounts she paid that benefitted the trust, she may file a motion to modify the restitution order pursuant to section , subdivision (f)(1), including appropriate and verifiable proof, and support for her claim that the expenses claimed are legally chargeable against the trust. We note that defendant bears the burden of demonstrating that the expenses she seeks to offset are properly considered restitution to Daniel. (See Millard, supra, 175 Cal.App.4th at p. 26.) 4 Defendant does not seek here numerous expenses she claimed below, acknowledging that more substantial documentation is required. Yet we are still left with the question of whether any of those expenses are properly charged against the restitution ordered or, as a threshold matter, against the trust. 5

6 III. DISPOSITION The matter is remanded to the trial court for a determination of the amount of the offset to the restitution order attributable to the value of the Georgia and Oregon properties. In all other respects, the judgment is affirmed. RIVERA, J. We concur: REARDON, Acting P.J. SEPULVEDA, J. 6