PEOPLE v. McBADE No. A127885.
THE PEOPLE, Plaintiff and Respondent, v. WANDA McBADE, Defendant and Appellant.
Court of Appeals of California, First District, Division One.
Filed December 8, 2010.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Defendant Wanda McBade entered a plea of no contest to a charge of felony embezzlement (Pen. Code, §§ 508, 487, subd. (a)), and was ordered to pay restitution to her former employer, City Mechanical, Inc. (City Mechanical), the victim of the embezzlement offense.
Defendant's appellate counsel has not raised any issues and instead has asked this court to undertake an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006)
STATEMENT OF FACTS AND PROCEDURAL HISTORY
To establish the victim's losses the prosecution presented evidence in the form of three exhibits. First, a declaration of counsel was offered that described the attorney fees incurred by City Mechanical during the 23 days of the trial in a civil action to determine and prove the funds embezzled by defendant. Counsel stated that 11.5 days of trial for at least 10 hours per day were devoted to the issue of proving the fact and amount of embezzled funds; each day of trial resulted in attorney fees of $6,500, for a total of $74,750. The two principals of City Mechanical also provided a statement of the lost hours and wages attributed to their required presence at the civil trial, each in the total amount of $22,000. Finally, the loss of salary for the two principals and three other witnesses due to their appearance at the prior restitution hearing was also specified in the amount of $3,475.
The sole disputed issue upon remand was the propriety of an award of reimbursement to the victim for specified categories of losses: the amount of attorney fees expended in the related civil trial; and the loss of income or wages and other costs or fees incurred by the victim as a result of attendance of the principals and witnesses at the civil trial and the prior restitution hearing on September 23, 2008. We therefore consider the court's restitution order following the remand hearing.
Our review is limited. "[T]he court's discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole." (People v. Baker (2005)
Also, in reviewing the sufficiency of the evidence to support the amount of restitution awarded, 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." [Citations.] Further, the standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] "If the circumstances reasonably justify the [trial court's] findings," the judgment may not be overturned when the circumstances might also reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact. [Citation.]' [Citation.]" (People v. Millard (2009)
We first point out that the court was not precluded from awarding attorney fees as restitution under collateral estoppel principles due to the previous denial of any attorney fees award in the civil case between the parties, as the defense argued in the trial court. The issues in the two cases were not identical, and a civil judgment does not satisfy the state's interest in a restitution order. (See Vigilant Ins. Co. v. Chiu (2009)
We find that the amount of the restitution order is based on adequate evidence in the form of the exhibits adduced by the prosecution, and was not an abuse of discretion. "`"[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt."' [Citation.]" (People v. Gemelli (2008)
As for the attorney fees, this court concluded in the prior appeal: "[U]nder section 1202.4, subdivision (f)(3)(H), attorney fees incurred by a victim in connection with civil litigation undertaken to prove a defendant's wrongdoing and to recover economic losses sustained as a result of the defendant's conduct are themselves economic losses for which restitution is appropriate (as are related investigative expenses, for which the trial court here did make an award)." (People v. McBade (Aug. 13, 2009, A122889) [nonpub. opn.], p. 9.) "The restitution order `shall be of a dollar amount sufficient to fully reimburse the victim' for economic losses caused by the defendant's criminal conduct. (§ 1202.4, subd. (f)(3).) Economic loss includes `Actual and reasonable attorney's fees and other costs of collection accrued by a private entity on behalf of the victim.' (Id., subd. (f)(3)(H)." (People v. Maheshwari (2003)
The evidence adduced by the victim constituted a prima facie showing of damages — in the amount ordered by the court — which was not effectively rebutted by defendant. We find that the amount of attorney fees requested by the victim and awarded by the court, although high when compared to the amount embezzled by defendant,
Defendant was represented by competent counsel throughout the proceedings.
Our review discloses no meritorious issues to be argued.
The judgment is affirmed.
Marchiano, P. J.
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