No. A127885.

THE PEOPLE, Plaintiff and Respondent, v. WANDA McBADE, Defendant and Appellant.

Court of Appeals of California, First District, Division One.



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.1 The trial court failed to award some categories of restitution requested by the prosecutor, however, and People appealed the restitution order. We concluded in the prior appeal (People v. McBade (Aug. 13, 2009, A122889) [nonpub. opn.]) that the trial court erred by failing to state on the record any "compelling and extraordinary reasons" for not awarding restitution, as required by section 1202.4, subdivision (f), and therefore reversed the restitution order and remanded the case to the trial court for the limited purpose of conducting a further restitution hearing and making findings on the record as to whether, and in what amount, if any, to award restitution for three categories of losses incurred by the victim: (1) attorney fees incurred by City Mechanical to establish defendant's wrongdoing in a civil action that preceded the criminal prosecution; (2) income lost by City Mechanical's principals, Ronald Tinkey and Russell Will, as a result of the time they spent attending and testifying at the civil trial; and (3) lost income and professional fees resulting from the attendance of Tinkey, Will, and other potential witnesses at the restitution hearing. Following a hearing the court awarded City Mechanical restitution in the total amount of $122,225: $74,750 in attorney fees; $44,000 for lost income; and $3,475 for costs incurred at the prior restitution hearing.

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) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Counsel declares in his affidavit that he notified defendant she could file a supplemental brief raising any issues she wishes to present to this court. No supplemental brief has been received. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.


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) 126 Cal.App.4th 463, 470.) "A trial court's determination of the amount of restitution is reversible only if the appellant demonstrates a clear abuse of discretion. [Citation.] No abuse of discretion is shown simply because the order does not reflect the exact amount of the loss, nor must the order reflect the amount of damages recoverable in a civil action. [Citation.] In determining the amount of restitution, all that is required is that the trial court `use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' [Citations.] The order must be affirmed if there is a factual and rational basis for the amount." (People v. Akins (2005) 128 Cal.App.4th 1376, 1382; see also People v. Phu (2009) 179 Cal.App.4th 280, 284.) "The court abuses its discretion when it acts contrary to law [citation] or fails to `use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious' [citation]." (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.)

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) 175 Cal.App.4th 7, 26.)

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) 175 Cal.App.4th 438, 445.)

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) 161 Cal.App.4th 1539, 1542.) The declarations of counsel and the principals of City Mechanical were properly considered by the court and adequate to prove the victim's losses. (See People v. Foster (1993) 14 Cal.App.4th 939, 946, superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) "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 by the victim. [Citation.] The defendant has the burden of rebutting the victim's statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property." (Gemelli, supra. at p. 1543.)

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) 107 Cal.App.4th 1406, 1409.) "Without evidence of embezzlement [the victim here] could not have maintained a civil action to recover his damages. Both the investigation and resulting civil action were `proper, necessary, and a logical result of appellant's criminal conduct.' [Citation.] Under these circumstances to deny [the victim] the cost of investigative fees is to fail to fully reimburse him for his economic loss." (Id. at pp. 1409-1410; see also People v. Millard, supra, 175 Cal.App.4th 7, 31.)

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,3 was nevertheless incurred as a result of the defendant's criminal conduct, and reasonable. As we read section 1202.4, the court was not required to reduce the fees to an amount commensurate with the actual economic loss suffered by the victim as a result of the embezzlement. The amount awarded for lost income and wages was also reasonable and supported by substantial evidence. No error in the restitution award appears in the record.

Defendant was represented by competent counsel throughout the proceedings.4

Our review discloses no meritorious issues to be argued.

The judgment is affirmed.

We concur.

Marchiano, P. J.

Margulies, J.


1. All statutory references are to the Penal Code.
2. In light of defendant's plea, we need not recite the facts pertinent to the embezzlement offense. Our focus is upon the evidence presented at the restitution hearing following the remand.
3. In the civil action, the court awarded City Mechanical $10,751.41 for the fraud and conversion, $2,330.50 in interest, and $13,877.50 for reasonable accounting expenses incurred by City Mechanical in investigating the fraud, for a total of $26,959.41, along with $7,000 in punitive damages against defendant.
4. By separate order filed this date we have denied defendant's petition for writ of habeas corpus, A129851, based on a claim of ineffective representation at the restitution hearing.


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