People v. Akins

27 Cal.Rptr.3d 815

128 Cal.App.4th 1376

The PEOPLE, Plaintiff and Appellant, v. Lashondra AKINS, Defendant and Respondent.

No. A107616.

Court of Appeal, First District, Division 1.

May 4, 2005.

David Paulson, District Attorney, County of Solano, George Williamson, Chief Deputy District Attorney, County of Solano, Joel S. Coble, Deputy District Attorney, County of Solano, for Plaintiff and Appellant.

R. Stevens Condie, Oakland, for Defendant and Respondent.

STEIN, J.

Pursuant to a negotiated plea, La Shondra Akins (defendant) pleaded no contest to one count of welfare fraud. The court placed her on probation for five years, on condition that she serve 90 days in county jail. It also ordered defendant to pay restitution to the Department of Health and Social Services of Solano County (Department) in the amount of $9,789. The People filed an appeal, contending that the court should have ordered restitution in the amount of $10,158, based upon the Department's calculation of overpayment of food stamps and cash benefits.

We shall hold that the court acted within the scope of its discretion to reduce the amount of restitution based upon its conclusion that the method the Department used to calculate the overpayment overstated its loss.

FACTS

On October 11, 2001, the District Attorney of Solano County filed a complaint charging defendant with one count of welfare fraud (Welf. & Inst.Code, § 10980, subd. (c)(2)) and multiple counts of perjury (Pen.Code, § 118). The alleged fraud consisted of defendant's failure to disclose income she received from employment by Pacific Bell, and disability benefits.

On December 2, 2003, defendant entered a negotiated plea of nolo contendere to one count of welfare fraud, and the court granted the district attorney's motion to dismiss the perjury counts. On the date set for judgment and sentence, a dispute arose over the amount of victim restitution. The probation report recommended that defendant be ordered to pay $10,158 to the Department. That amount was based upon the Department's calculation of overpayment of food stamp and cash benefits to defendant. Defense counsel stated that this amount was incorrect pursuant to People v. Hudson (2003) 113 Cal.App.4th 924, 7 Cal.Rptr.3d 114 (Hudson), which was filed November 26, 2003, just a few days before the plea was entered. In Hudson, Division Three of this court had held the method used by the Department results in an overstatement of the loss, because it does not apply a 20 percent earned income deduction when calculating the amount of food stamps to which the defendant would have been entitled had she timely and accurately disclosed her income. The district attorney argued that defendant had stipulated to the stated amount of restitution as part of the plea. Defense counsel denied that defendant had stipulated to a specific amount of restitution. She also asserted that it was "disingenuous," in the face of Hudson, for the district attorney to insist on restitution in the amount calculated by the method used by the Department. She further argued that if another member of her office had stipulated to a specific amount based upon the Department's calculation, that would constitute ineffective assistance of counsel, and she asked to have conflict counsel appointed to represent defendant.¹ The court agreed that conflict counsel should be appointed, and put the matter over for a few weeks.

At the next hearing, on February 17, 2004, defendant was represented by the conflict counsel. The court and the parties discussed the possibility of allowing defendant to file a motion to withdraw the plea. The court also questioned whether, if the Department's calculation did not comply with Hudson, supra, 113 Cal.App.4th 924, 7 Cal.Rptr.3d 114, it could, or should, enter an order requiring restitution in that amount, especially if defense counsel was unaware of Hudson when negotiating the plea. The court continued the matter for a contested hearing on a motion to withdraw the plea, but no motion was filed, and the court did not file an order setting aside the plea.

On March 23, 2004, the hearing focused entirely upon how the amount of restitution should be calculated, and what the correct amount should be. The district attorney conceded that the amount of $10,158 was not calculated in accordance with Hudson, supra, 113 Cal.App.4th 924, 7 Cal.Rptr.3d 114, but argued that Hudson should not be applied "retroactively." The district attorney also argued that the court must accept the Department's calculation because it was done in accordance with state and federal regulations. The court disagreed. It stated that there was no issue of retroactivity because Hudson was filed before the plea was negotiated, and before imposition of judgment and sentence. It added, "[O]ur job is to follow the law. And if our County is trying to make money off of those convicted of crime more than they're entitled to, then I can't be part of that and I don't want to be." The court concluded that it would order restitution based only upon a recalculation of the amount based upon a method that complied with Hudson.

Eventually, the district attorney submitted the Department's recalculation of the overpayment of food stamps, and of Aid to Families with Dependent Children (AFDC) or California Work Opportunity and Responsibility to Kids (CalWORKS) cash aid,² which reduced the food stamp overpayment to $3,059, and the cash overpayment to $6,730, for a total of $9,789. The court ordered that judgment and sentence be suspended and that defendant be placed upon probation for five years. It further ordered, among other things, that defendant pay the Department restitution in the amount of $9,789. The People filed a timely notice of appeal.³

ANALYSIS

The People contend that the court should have awarded restitution in the amount of $10,158 based upon the Department's calculation, despite the fact that the Department used a method expressly disapproved by Division Three of this court in Hudson, supra, 113 Cal.App.4th 924, 7 Cal.Rptr.3d 114, and that it was an abuse of discretion to require a recalculation that reduced the restitution amount by $369. Before addressing the People's specific contentions on appeal we briefly review the relevant cases and legal principles.

Summary of Relevant Law

Penal Code section 1202.4, subdivision (f),⁴ provides: "In every case in which a victim has suffered an economic loss as a result of defendant's conduct, the court shall require that a 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 any other showing to the court. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." The defendant has a right to a hearing to dispute the amount of restitution, and the court "may modify the amount, on its own motion or on the motion of the district attorney, the victim . . . or the defendant." (§ 1202.4, subd. (f)(1).) Restitution to the victim is mandatory, although the court retains discretion as to the amount. (People v. Rowland (1997) 51 Cal.App.4th 1745, 1751-1753, 60 Cal.Rptr.2d 351 [court may modify sentence based upon guilty plea to include victim restitution where none previously awarded because sentence without any victim restitution is invalid, and the defendant failed to show a reasonable probability that he would not have pleaded guilty if advised of victim restitution].)

A trial court's determination of the amount of restitution is reversible only if the appellant demonstrates a clear abuse of discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992, 81 Cal.Rptr.2d 886.) 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. (People v. Bernal (2002) 101 Cal.App.4th 155, 162, 123 Cal.Rptr.2d 622.) 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." (People v. Thygesen, supra, at p. 992, 81 Cal. Rptr.2d 886; In re Brian S. (1982) 130 Cal.App.3d 523, 181 Cal.Rptr. 778.) The order must be affirmed if there is a factual and rational basis for the amount. (People v. Dalvito (1997) 56 Cal.App.4th 557, 562, 65 Cal.Rptr.2d 679.)

In People v. Crow (1993) 6 Cal.4th 952, 26 Cal.Rptr.2d 1, 864 P.2d 80 (Crow), the trial court ordered the defendant, who had been convicted of welfare fraud, to pay the county restitution in the amount of $31,807. Our Supreme Court did not address any issue related to the restitution amount or method of calculation because the defendant challenged only the right of a governmental agency to receive victim restitution. The court first held that the defrauded county agency that paid the benefits is a "victim" entitled to restitution. (Id. at p. 960, 26 Cal.Rptr.2d 1, 864 P.2d 80.) The second issue before the court was whether there was sufficient evidence to support the imposition of a one-year enhancement that applied if "the loss" to the victim exceeded $25,000. For the purpose of imposing the enhancement, the court agreed with the defendant that the county's "loss" was not the $32,929 in welfare and food stamp benefits it had paid. (Id. at p. 961, 26 Cal.Rptr.2d 1, 864 P.2d 80.) Instead, "the defrauded agency's `loss' should be calculated by subtracting the amount the government would have paid had no acts of fraud occurred from the amount the government actually paid." (Id. at p. 962, 26 Cal.Rptr.2d 1, 864 P.2d 80, italics added.) The court nevertheless found the evidence sufficient to support the enhancement because it was the defendant's burden to show that, absent the fraud, he would have been entitled to some benefits,...