People v. Kocontes

1

THE PEOPLE, Plaintiff and Respondent, v. LONNIE LOREN KOCONTES, Defendant and Appellant.

G060333

California Court of Appeals, Fourth District, Third Division

September 19, 2024

NOT TO BE PUBLISHED

Appeal from a postjudgment order of the Superior Court of Orange County No. 13ZF0163, Richard M. King, Judge.

Maha Jamal Kasim for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

O'LEARY, P. J.

Lonnie Loren Kocontes appeals from a postjudgment order awarding restitution in the amount of $930,958. Kocontes raises numerous contentions, none of which have merit. We affirm the postjudgment order.

STATEMENT OF FACTS

A complete recitation of the facts can be found in our prior opinion, People v. Kocontes (2022) 86 Cal.App.5th 787.^[1] Suffice it to say, in May 2006, Kocontes and Micki Kanesaki his ex-wife, were on a cruise ship heading to Naples, Italy. (Id. at p. 800.) One evening, they ate, went to a show, and returned to their cabin. (Ibid.) About 6:00 a.m. the next morning, Kocontes reported Kanesaki missing, and she was nowhere to be found. (Ibid.) About 36 hours later, another ship recovered Kanesaki's body. (Ibid.) Three medical examiners concluded she did not drown, and two concluded she was strangled. (Id. at pp. 800, 805, 816.) A jury convicted Kocontes of first degree murder for financial gain. (Id. at p. 817.) The trial court sentenced Kocontes to prison for life without the possibility of parole. (Ibid.) We affirmed. (Id. at p. 799.)

PROCEDURAL HISTORY

The prosecution filed a motion for restitution. Although the prosecution initially sought $1,781,789, it later revised the amount to $930,958. In its brief, the prosecution explained its expert and the defense expert opined that the estimated values of the couple's joint accounts and assets at the time of Kanesaki's death were as follows: TD Ameritrade (investment account): $474,996; Vanguard (investment account): $581,120 Citibank (checking account): $5,158; Citibank (savings account): $3,973; and 17 Maybeck Lane, Ladera Ranch (real property): $636,416. Additionally, the experts agreed that Kanesaki had $80,127 in a separate Vanguard account at the time of her death. The prosecution explained that at the time of Kocontes and Kanesaki's divorce in 2002, they filed a "Marital Termination Agreement" that specified the division of assets. The prosecution, relying on the agreement, argued Kanesaki owned 100 percent of her separate Vanguard account; Kanesaki was entitled to half of the couple's joint TD Ameritrade, Vanguard, and Citibank accounts at the time of her death; and Kanesaki was entitled to 50 percent of the proceeds of the sale of the Maybeck Lane house.

In his restitution brief, Kocontes contended a restitution hearing was unnecessary because he and Kanesaki's estate reached a settlement agreement. For background, in 2008, the United States of America seized $1,026,781.61 from a bank account belonging to Kocontes. Kocontes and his then wife sought return of the funds. In federal district court, Magistrate Judge Marc Goldman granted Kocontes and wife's motion for summary judgment dismissing the action with prejudice. He asserted collateral estoppel prohibited relitigation of the issue,^[2] disputed the prosecution's expert's conclusions, and claimed Kanesaki's brother Toshitaka Kanesaki, was not the proper beneficiary. The prosecution filed a reply.

The trial judge, who had decided numerous pretrial issues and presided over Kocontes's trial, conducted the restitution hearing. Because of the judge's familiarity with the proceedings, and in the interest of judicial economy, the parties agreed the prosecution's case-in-chief would be the trial testimony of the prosecution's expert, Scott Weitzman. The parties also agreed that rather than adhere strictly to the typical question and answer format, Kocontes could engage in a narrative and the defense could present its case through him "read[ing] information into the record" when he testified.

Kocontes testified that in 2000, he and Kanesaki bought the Maybeck Lane house with Toshitaka and his wife. However, using his "separate money," he then bought out Kanesaki's brother's interest in the house and thus he owned the additional share "free and clear from" Kanesaki. He said that when he and Kanesaki divorced in 2002, they "reached two agreements"-one was their written Marital Termination Agreement and the other was "an oral agreement" to continue "to live together and share expenses" at the Maybeck Lane house. He explained that pursuant to their oral agreement, Kanesaki was supposed to deposit her disability payments into their Citibank joint checking account. He said though that he recently learned she did not do so for 30 months, from 2001 to 2006, which amounted to $82,362.60. He also stated that Kanesaki had violated their Marital Termination Agreement by failing to keep her own health insurance, which meant that joint funds in the amount of $18,000 were used to pay her health insurance and he was entitled to an offset.

As to the house on Maybeck Lane, Kocontes stated that he continued to pay the mortgage and paid it off in 2003 using his and his father's money; Kanesaki did not contribute. He admitted that he signed a declaration stating he would accept half the equity in the house because he wanted closure.

Kocontes testified Kanesaki wrote checks to herself from the joint Citibank checking account without his knowledge in the amount of $197,430. He also stated that the $335,000 that funded the joint Vanguard account was excess proceeds from the sale of various stocks he owned with his father and not Kanesaki. Thus, he claimed credit for the entirety of their joint Vanguard account valued at $581,120. He admitted filing joint taxes with Kanesaki even though they were divorced, but said Kanesaki told him that the IRS would recognize the equivalent of a common law marriage so he did not think it was improper. Kocontes explained that his separate property funded the joint Ameritrade account with Kanesaki, but they did not have a written agreement stating that it was his separate property.

Finally, Kocontes stated that he paid $22,723.93 to probate Kanesaki's will and to be able to sell the Maybeck Lane house, and he also paid $15,000 as part of a settlement agreement with Kanesaki's family regarding her probate. He concluded that if the trial court awarded offsets for all these items, Kanesaki's estate was not entitled to any restitution.

On cross-examination, Kocontes described his "oral agreement" with Kanesaki: she would contribute her disability income to their joint Citibank account, he would contribute his work income, and they "would continue to pool [their] monies" to share the expenses of maintaining the Maybeck Lane house and other joint expenses. Kocontes stated that he did not "scrutinize the bank statements and check register" because he "was working seven days a week." With respect to their Marital Termination Agreement, Kocontes stated that they took care to identify separate property versus joint property, except for the house. He acknowledged that, in lieu of spousal support, the agreement was Kanesaki would receive all of the parties' jointly held securities and savings accounts. As to the Maybeck Lane house, Kocontes admitted that he submitted a signed declaration with the court that stated he and Kanesaki "'jointly paid off the mortgage on the residence'" and the two of them owned it free of any debt. As for the probate costs he paid, Kocontes agreed that "they wouldn't have to be paid if [Kanesaki] hadn't died," but added that he had "no personal knowledge she was murdered."

In rebuttal, the prosecution called Scott Weitzman, its expert who testified at Kocontes's trial. During the trial, Weitzman testified that the accounts that were designated as joint tenancy with right of survivorship were to be split 50/50 between Kocontes and Kanesaki concerning valuation of the assets. He opined that the value of Kanesaki's assets at the time of her death was approximately $930,000. Weitzman said the defense expert at trial faulted his analysis because he failed to do a tracing methodology to determine an accurate valuation of Kanesaki's assets. Consequently, before the restitution hearing, Weitzman employed a tracing methodology to again review and analyze the available records to determine the value of Kanesaki's share of the couple's assets at the time of her death. Based on his tracing analysis, Weitzman opined that the value of Kanesaki's assets was approximately $930,000, i.e., the same amount that he had attributed to Kanesaki using the first analysis he conducted during Kocontes's trial. Weitzman also noted that investment and security accounts rise in value based on deposits as well as appreciation, and that trading activity has the potential to raise the value of an investment account.

After counsel argued, the trial court adopted its tentative ruling as its final ruling. Citing to People v. Petronella (2013) 218 Cal.App.4th 945, 969, and referencing exhibit C of the prosecution's restitution brief, which had also been a trial exhibit, the court found "by a preponderance of the evidence, that the amounts that are set forth in the two columns, 'Total value' and '[Kocontes's] inheritance,' ha[d] been established through the testimony both during the trial and during th[e] restitution hearing." The court explained that account Nos. "2 through 6 were joint accounts and that [a]ccount [No.] 1 was the property of the victim in this case and inherited by [Koco...