Filed 3/12/21 P. v. Wolfe CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC JONATHAN WOLFE,

Defendant;

BRAD WOLFE, as Special 

Administrator, etc.,

Appellant.

B305833

(Los Angeles County

Super. Ct. No. BA425130)

APPEAL from an order of the Superior Court of Los 

Angeles County. William C. Ryan, Judge. Affirmed.

Michael Evan Beckman for Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael R. Johnsen and Paul M. 

Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and 

Respondent.
2

The special administrator of the Estate of Eric Jonathan 

Wolfe, as successor in interest to defendant Eric Jonathan 

Wolfe,1 appeals portions of the superior court’s March 9, 2020 

restitution order.

From 2007 to 2013, appellant and his codefendants 

engaged in a predatory real estate and mortgage fraud scheme 

through which they acquired properties from homeowners in 

financial distress by falsely promising to assist the homeowners 

with short sales or loan modifications. As part of a fake loan 

modification or short sale process, appellant would forge or have 

the homeowners sign grant deeds conveying the properties to one 

of appellant’s many companies operating under various names. 

Unbeknownst to the homeowners, appellant would later alter the 

deeds to indicate the properties had been conveyed as gifts.

After appellant wrongfully acquired the properties from the 

homeowners, payments on the mortgages for those properties 

would cease, and appellant would rent out or sell the properties, 

pocketing the proceeds. In some instances, appellant paid the 

lending institutions less than the amounts outstanding on the 

mortgages based on fraudulent below-market valuations and 

then sold the properties at a profit. On other occasions, when the 

lending institutions attempted to foreclose on the properties,

appellant would seek to prevent or delay foreclosure in order to 

1 Wolfe died on February 11, 2018, while serving his 16-

year 8-month prison sentence. His brother was appointed special 

administrator to the estate in Los Angeles County Superior Court 

probate case No. 18STPB06847 and given the power to retain an 

attorney and act on behalf of the estate at the restitution hearing. 

We refer to Wolfe and the special administrator interchangeably 

herein as appellant.
3

extract more rents by submitting fictitious offers and/or by filing 

fraudulent lawsuits and lis pendens on the properties.

On June 25, 2014, the Los Angeles County Grand Jury 

returned a 118-count indictment against appellant and 10

codefendants,

2 charging them in connection with the scheme 

under Penal Code3 sections 182, subdivision (a), 487, 

subdivision (a), 115, subdivision (a), and 532f, as well as failing to 

file and filing false state tax returns.

On June 26, 2015, appellant pleaded guilty to 22 of the 118 

counts in the indictment. Specifically, appellant pleaded guilty to 

one count of conspiracy to commit grand theft of personal 

property as charged in count 1 (Pen. Code, §§ 182, subd. (a), 487, 

subd. (a)), ten counts of grand theft of personal property (Pen. 

Code, § 487, subd. (a); counts 3, 16, 33, 40, 44, 53, 54, 65, 96, and 

105), four counts of procuring or offering a false instrument (Pen. 

Code, § 115, subd. (a); counts 12, 28, 75, and 83), one count of 

forgery (Pen. Code, § 475, subd. (a); count 15), two counts of 

mortgage fraud (Pen. Code, § 532f, subd. (a)(1); counts 50 and 

88), one count of filing a false tax return (Rev. & Tax. Code, 

§ 19705, subd. (a); count 110), and three counts of failing to file a 

tax return (Rev. & Tax. Code, § 19706; counts 111, 112, and 113). 

Appellant also admitted an aggravated white collar special 

allegation under Penal Code section 186.11, subdivision (a)(2) as 

to counts 1, 3, 13, 16, 33, 40, 44, 53, 54, 65, 96, and 105, as well as 

the special allegation that the loss exceeded $200,000 (Pen. Code, 

former § 12022.6, subd. (a)(2)), based on the total amount of the 

theft. The remaining counts of the indictment were dismissed.

2 The codefendants are not parties to this appeal.

3 Undesignated statutory references are to the Penal Code.
4

Appellant was sentenced to 16 years 8 months in state 

prison. A restitution hearing was deferred until after the case 

was resolved against all defendants.4

The restitution hearing took place over five days in June, 

September, and December 2019. The prosecution presented 121

exhibits in support of its restitution claims, including two 

exhibits (People’s exhibits 97 & 98) setting forth the losses and 

calculations of those losses as to each property, and called Special 

Agent Thomas Donohue and Investigative Auditor Hengru 

Connie Chen to testify. Several individuals gave victim impact 

statements. No witnesses testified on behalf of the special 

administrator.

The trial court issued a detailed memorandum of decision 

on March 9, 2020, awarding restitution to several lending 

institutions, two estates, and various individuals, as well as

4 Prior to any restitution hearing, appellant filed notice of 

appeal without obtaining a certificate of probable cause. We 

ordered the appeal limited to issues that would not require a 

certificate of probable cause. (People v. Wolfe (Oct. 2, 2017, 

B285315).) Appellant died while the appeal was pending, and on 

May 4, 2018, we granted the People’s motion to dismiss and 

partially abate the proceedings, but ordered that the criminal 

conviction “remain[ ] in force and effect to the extent necessary 

for the trial court to enter and enforce orders with respect to 

restitution and the receivership. Restitution orders and the 

receivership are not abated.” (See <https://appellatecases

.courtinfo.ca.gov/search/case/dockets.cfm?dist=2&doc_id=2229616

&doc_no=B285315&request_token=NiIwLSEmTkw9WzBBSCI9V

ElIUDg6USxTKyNOSztSICAgCg%3D%3D> [as of Mar. 1, 2021], 

archived at <https://perma.cc/A8LQ-T9M6>.)
5

interest on the stipulated amount owed to the Franchise Tax 

Board. Asserting many of the same arguments raised below, 

appellant challenges the restitution awarded to the Estates of 

Jean Ablott ($208,777.03) and Lyle Gilmor Skarsten 

($231,636.91) (the Estates), the lending institutions⎯Fannie Mae 

($48,248.45 and $44,584.16), Bank of America ($54,250, $66,300, 

$34,535, $67,496, and $99,472.50), GMAC Mortgage ($16,250 and 

$43,750), JP Morgan Chase ($54,250), IndyMac/One West Bank5

($36,050), and Wells Fargo Bank ($62,546.42) (collectively the 

Lending Institutions)⎯and Guillermo Cilia ($112,117). 

Appellant also contests the award of interest to the Franchise 

Tax Board.

DISCUSSION

I. The Superior Court Properly Exercised Its 

Discretion in Awarding Restitution to the 

Estates, the Lending Institutions, and 

Guillermo Cilia

A. Relevant legal principles

Passed by the voters in 1982, Proposition 8 “established the 

right of crime victims to receive restitution directly ‘from the 

persons convicted of the crimes for losses they suffer.’ (Cal. 

Const., art. I, § 28, subd. (b).) The initiative added article I, 

section 28, subdivision (b) to the California Constitution: ‘It is 

the unequivocal intention of the People of the State of California 

that all persons who suffer losses as a result of criminal activity 

5 After IndyMac failed in 2008, the bulk of its assets were 

acquired by One West Bank. In its memorandum of decision, the 

superior court referred to the lender as “IndyMac/One West 

Bank,” a designation we adopt.
6

shall have the right to restitution from the persons convicted of 

the crimes for losses they suffer. [¶] Restitution shall be ordered 

from the convicted persons in every case, regardless of the 

sentence or disposition imposed, in which a crime victim suffers a 

loss, unless compelling and extraordinary reasons exist to the 

contrary.’ ” (People v. Giordano (2007) 42 Cal.4th 644, 652 

(Giordano).)

Section 1202.4 represents the Legislature’s implementation 

of Proposition 8’s broad constitutional mandate. (People v. 

Stanley (2012) 54 Cal.4th 734, 736 (Stanley).) The statute begins 

with a declaration of the Legislature’s intent “that a victim of 

crime who incurs an economic loss as a result of the commission 

of a crime shall receive restitution directly from a defendant 

convicted of that crime.” (§ 1202.4, subd. (a)(1); Giordano, supra, 

42 Cal.4th at p. 656.) Section 1202.4, subdivision (f) provides 

that “in every case in which a victim has suffered economic loss 

as a result of the defendant’s conduct, the court shall require that 

the 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 victims or any other showing to the 

court.” (Italics added; Stanley, at p. 737.) The statute further 

requires that the restitution award “shall be of a dollar amount 

that is sufficient to fully reimburse the victim or victims for every

determined economic loss incurred as the result of the 

defendant’s criminal conduct.” (§ 1202.4, subd. (f)(3), italics 

added; Stanley, at p. 737; Giordano, at p. 656.) Finally, “the trial 

court ‘shall order full restitution unless it finds compelling and 

extraordinary reasons’ not to do so.” (Stanley, at p. 737, italics 

added, quoting former § 1202.4, subd. (f); see also Giordano, at 

p. 656, quoting former § 1202.4, subd. (g).)
7

Section 1202.4’s mandate that the restitution order 

reimburse the victim to the extent that the victim’s economic loss 

occurs “as a result of” the defendant’s criminal conduct requires a 

showing of direct causation. (§ 1202.4, subds. (a) & (f); In re S.E.

(2020) 46 Cal.App.5th 795, 803; People v. Jones (2010) 187 

Cal.App.4th 418, 425.) California courts have adopted the 

“substantial factor” test in analyzing whether a victim’s economic 

loss results from the defendant’s criminal conduct for purposes of 

mandatory victim restitution. (People v. Lockwood (2013) 214 

Cal.App.4th 91, 102; People v. Holmberg (2011) 195 Cal.App.4th 

1310.) That standard is relatively broad, requiring only that the 

defendant’s criminal conduct be more than a negligible or 

theoretical cause of the injury to the victim. (Holmberg, at 

p. 1321.) “ ‘Thus, “a force which plays only an ‘infinitesimal’ or 

‘theoretical’ part in bringing about injury, damage, or loss is not a 

substantial factor” [citation], but a very minor force that does 

cause harm is a substantial factor.’ ” (Id. at p. 1322, quoting 

Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.)

A “victim” is any individual or entity who has suffered 

economic loss as a result of the commission of a crime of which 

the defendant was convicted, including a “corporation, business 

trust, estate, trust, partnership, association, joint venture, 

government, governmental subdivision, agency, or 

instrumentality, or any other legal or commercial entity when 

that entity is a direct victim of a crime.” (§ 1202.4, subds. (k)(2), 

(a)(1), (f)(3); People v. Martinez (2005) 36 Cal.4th 384, 393; People 

v. Crow (1993) 6 Cal.4th 952, 957 [a “ ‘victim’ ” is a “ ‘person who 

is the object of a crime,’ ” and may include an entity that is not a 

natural person].) Further, “[w]hen the actual victim of a crime 

has died, the estate, acting in the decedent’s stead, steps into the 
8

decedent’s shoes to collect restitution owed to the decedent, but 

which the decedent cannot personally receive because of his or 

her death. Thus, a decedent’s estate—or, more precisely, its 

executor or administrator as the decedent’s personal 

representative—is a proper recipient, on the decedent’s behalf, of 

restitution owed to the decedent, as an actual and immediate 

crime victim, for economic losses the decedent incurred as a 

result of the defendant’s offenses against the decedent.” (People 

v. Runyan (2012) 54 Cal.4th 849, 857 [nothing in the language of 

§ 1202.4, subd. (f) suggests a defendant is absolved of 

responsibility to pay restitution for the economic loss a victim 

personally incurred as a result of the crime if the victim has 

died].)

Section 1202.4 requires that a defendant make restitution 

to all victims who have suffered economic loss as a result of the 

defendant’s criminal conduct, regardless of whether the victims 

were named in the charging document. (People v. Walker (2014) 

231 Cal.App.4th 1270, 1276 (Walker) [§ 1202.4 imposes no 

obligation to name victims, “and judicially imposing such a duty 

would make a victim’s entitlement to restitution turn on the 

happenstance of whether the prosecutor located or named that 

victim before the defendant pled or was convicted”].)

In addition, even absent a victim’s claim for restitution, the 

prosecution has authority to seek restitution on the victim’s 

behalf. (People v. Selivanov (2016) 5 Cal.App.5th 726, 784 

(Selivanov) [§ 1202.4 is “devoid of any language limiting the class 

of compensable victims to those who affirmatively request 

restitution”].) Article I, section 28, subdivision (b)(13)(A) of the 

California Constitution states unequivocally that every victim 

who suffers a loss arising from the crime of which the defendant 
9

was convicted is entitled to restitution from the defendant. “ ‘The 

only qualification is that the loss must be ‘the result of [the 

defendant’s] criminal activity.’ ” (Selivanov, at p. 784, italics 

added.) As the court in Selivanov explained, section 1202.4,

subdivision (f) “uses disjunctive language to indicate that the 

amount of restitution may be based either on the ‘amount of loss 

claimed by the victim or victims’ or ‘any other showing to the 

court,’ suggesting that a claim by the victim is not . . . a ‘primary 

predicate condition’ for the issuance of a restitution order.” (Id. 

at p. 785.) “Instead, ‘someone,’ such as the People, may initiate 

the restitution process on behalf of a victim.”

6 (Ibid.)

6 Moreover, particularly where the defendant has entered 

into a plea agreement, the state has its own interest in securing 

restitution on behalf of any victims of the defendant’s criminality. 

(People v. Runyan, supra, 54 Cal.4th at p. 865 [“the requirement 

that a convicted criminal defendant pay restitution for the losses 

caused by his crime has aims beyond strict compensation that 

include deterrence and rehabilitation”].) For example, as one 

court has explained, “While a settlement agreement with, and 

release of, a defendant’s insurance company may reflect a victim’s 

willingness to accept the amount paid in full satisfaction for all 

civil liability, it does not reflect the willingness of the People to 

accept that sum in satisfaction of the defendant’s rehabilitative 

and deterrent debt to society. A restitution order pursuant to a 

defendant’s plea is an agreement between the defendant and the 

state. [Citation.] The victim is not party to the agreement, and a 

release by the victim cannot act to release a defendant from his 

financial debt to the state any more than it could terminate his 

prison sentence.” (People v. Bernal (2002) 101 Cal.App.4th 155, 

162 (Bernal).)
10

A restitution hearing is not a civil trial, but a criminal 

sentencing hearing which lacks the formality of a trial. (People v. 

Smith (2011) 198 Cal.App.4th 415, 434.) “ ‘[A] hearing to 

establish the amount of restitution does not require the 

formalities of other phases of a criminal prosecution.’ ” (People v. 

Keichler (2005) 129 Cal.App.4th 1039, 1048 (Keichler); People v. 

Kelly (2020) 59 Cal.App.5th 1172, 1181 (Kelly).) The defendant is 

not entitled to a jury, and “ ‘[i]n determining the propriety and 

amount of restitution, the preponderance of the evidence 

standard satisfies due process.’ ” (Smith, at p. 433.) Indeed, 

“[s]ection 1202.4 does not, by its terms, require any particular 

kind of proof.” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 

1542–1543 (Gemelli).)

“ ‘ “ ‘[S]entencing judges are given virtually unlimited 

discretion as to the kind of information they can consider’ ” ’ in 

determining victim restitution.” (People v. Phu (2009) 179 

Cal.App.4th 280, 283 (Phu).) “[T]he standard of evidence at a 

restitution hearing does not necessarily require a crime victim to 

produce detailed billing records, receipts, or business invoices.” 

(Kelly, supra, 59 Cal.App.5th at p. 1183; Gemelli, supra, 161 

Cal.App.4th at p. 1542.) Further, a trial court may rely on 

hearsay documents in determining victim restitution. (§ 1203.1d, 

subd. (d) [“Documentary evidence, such as bills, receipts, repair 

estimates, insurance payment statements, payroll stubs, business 

records, and similar documents relevant to the value of the stolen 

or damaged property, medical expenses, and wages and profits 

lost shall not be excluded as hearsay evidence”].)

The statutory provisions implementing a victim’s

constitutional right to restitution are to be broadly and liberally 

construed. (Stanley, supra, 54 Cal.4th at p. 737; People v. Nichols
11

(2017) 8 Cal.App.5th 330, 342 (Nichols).) We review a challenge 

to the amount of victim restitution for abuse of discretion, and 

will not reverse the award unless it is arbitrary or capricious. 

(Kelly, supra, 59 Cal.App.5th at p. 1181; In re S.E., supra, 46 

Cal.App.5th at p. 803.) The trial court “ ‘may use any rational 

method of fixing the amount of restitution as long as it is 

reasonably calculated to make the victim whole’ ” (Nichols, at 

p. 342), and when a factual and rational basis exists for the

restitution order, no abuse of discretion will be found by the 

reviewing court (Giordano, supra, 42 Cal.4th at pp. 663–664 

[under this standard, the trial court is required only to “employ a 

method that is rationally designed to determine the . . . victim’s 

economic loss”]).

Finally, “the People carry the initial burden of 

demonstrating the amount of the victim’s economic loss. 

[Citations.] Their showing establishes the amount of restitution 

the victim is entitled to receive, and the burden shifts to the 

defendant to prove by a preponderance of the evidence that the 

loss is other than that claimed.” (Selivanov, supra, 5 Cal.App.5th 

at p. 788; People v. Taylor (2011) 197 Cal.App.4th 757, 761 

(Taylor) [“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”].) Accordingly, absent a challenge by the 

defendant, an award in the amount specified in the restitution 

claim is not an abuse of discretion. (See Keichler, supra, 129 

Cal.App.4th at p. 1048.)
12

B. The superior court properly awarded restitution 

to the Estates based on the economic losses they 

sustained as a direct result of appellant’s 

criminal offenses, including the conspiracy to 

commit theft, to which appellant pleaded guilty

1. The challenged restitution awards to the Estates

a. The restitution award of $208,777.03 to the Estate of 

Jean Ablott based on counts 1 (conspiracy to commit 

grand theft of personal property) and 83 (procuring and 

offering a false or forged instrument) with respect to the 

property located at 111 East Palmdale Avenue in Orange

In 2003 before her death on November 16, 2005, Jean 

Ablott took out a loan from Wells Fargo Bank secured by her 

property at 111 East Palmdale Avenue in Orange. On May 27, 

2010, a fraudulent trustee’s deed upon sale was recorded by 

which Cal-Western Reconveyance Corporation as trustee

purported to convey title to the property to Pinnacle Group 

Realty Fund, one of the many entities controlled by appellant and 

his coconspirators.7 On July 16, 2010, appellant paid $88,722.97 

to Wells Fargo to pay off the remaining balance on the 2003 loan 

7 After Ms. Ablott’s death, the property sat vacant, and 

Wells Fargo remained the trustee under the 2003 deed of trust. 

On February 25, 2010, a notice of trustee’s sale was recorded by 

Cal-Western Reconveyance Corporation as the “duly appointed 

trustee,” but no documentation showing the substitution of CalWestern Reconveyance Corporation for Wells Fargo as the 

trustee was presented to the trial court. Further, “J. Vantilborg,” 

who signed the trustee’s deed upon sale as the “Limited Signing 

Officer” of Cal-Western Reconveyance Corporation never worked 

for Cal-Western and had no authority to sign the document on 

Cal-Western’s behalf.
13

and took control of the property. Two of appellant’s 

coconspirators moved into the property and lived there rent-free 

for 17 months until appellant sold the house for $289,277.03.

The superior court awarded the Estate of Jean Ablott 

restitution in the amount of $208,777.03, plus interest. The 

award represented $200,777.03 in stolen equity as a result of the 

fraudulent trustee’s deed upon sale and lost rental value at the 

rate of $500 per month for 17 months.

b. The restitution award of $231,636.91 to the Estate of 

Lyle Gilmor Skarsten based on counts 1 (conspiracy to 

commit grand theft of personal property) and 96 (grand 

theft of personal property) with respect to the property 

located at 2613 East Quincy Avenue in Orange

Lyle Gilmor Skarsten owned the property at 2613 East 

Quincy Avenue free of any encumbrances when he died intestate 

on October 13, 2006. His daughter, Robin Skarsten, was having 

difficulty gaining control of the property and agreed to have 

appellant upgrade, probate, and sell the property. Appellant 

forged a grant deed recorded on November 10, 2011, purportedly 

signed by the deceased Mr. Skarsten, conveying title to the 

property to Ms. Skarsten. On December 6, 2011, another grant 

deed was recorded whereby Ms. Skarsten transferred the 

property to appellant. Thereafter, appellant sold the property for 

$321,771.67, of which he paid $79,000 to Ms. Skarsten and spent 

$11,134.76 on repairs.

The $231,636.91 restitution award, plus interest, to the 

Skarsten Estate included the net proceeds appellant received 

from the sale of the property ($321,771.67 offset by payments of 

$79,000 to Ms. Skarsten and $11,134.76 for repairs to the 

property).
14

2. Analysis

Appellant contends the trial court abused its discretion in 

awarding victim restitution to the Estates because the 

transactions in which appellant acquired the Estates’ properties 

were “entirely legitimate.” The trial court rejected the same

argument below with the observation in its memorandum of 

decision that appellant had pleaded guilty to count 1, conspiracy 

to commit grand theft of personal property, count 83, procuring 

and offering a false or forged trustee’s deed upon sale in 

connection with the Ablott Estate property, and count 96, grand 

theft of personal property in connection with the Skarsten Estate 

property. In light of appellant’s admission of guilt with respect to 

these counts, any question as to whether the transactions were 

“legitimate” was not before the court in fixing the restitution

awards.

Appellant also attacks the restitution award to the 

Skarsten Estate on the additional ground that the Estate was not 

a “victim” of appellant’s criminal conduct because, he claims, the 

estate (“to the extent one even existed”) “had no ownership 

interest in [the property] at any relevant time.” Not only is this 

claim contrary to the evidence, but it is also belied by appellant’s 

admission through his plea to count 96 (in which the Skarsten 

Estate was the named victim) that the Estate was a victim of his 

criminal conduct.

Appellant further contends that the People failed to 

“demonstrate an adequate factual basis to make a prima facie

case for restitution” to the Estates because there was no evidence 

any documents were forged, or, in the case of the Skarsten Estate 

property, that “the sale was anything other than wholly lawful.” 

But appellant’s challenge to the fact that the trial court awarded 
15

restitution to the Estates rather than contesting the amounts of 

these awards is fatal to his claim that the superior court abused 

its discretion. Appellant’s guilty plea to counts 1, 83, and 96 

established the right of any victims of these offenses to receive 

restitution from appellant. (§ 1202.4, subds. (a)(1) & (f); 

Giordano, supra, 42 Cal.4th at p. 656; Stanley, supra, 54 Cal.4th 

at p. 737.) The purpose of the restitution hearing was to afford 

appellant the opportunity to challenge the amount of restitution 

sought by the People, not to contest the validity of the conviction. 

Accordingly, it was the prosecution’s initial burden to establish 

the amount of the victims’ economic losses, after which the 

burden shifted to appellant to prove by a preponderance of the 

evidence that those losses were other than the amounts the 

People claimed. (Selivanov, supra, 5 Cal.App.5th at p. 788; see 

§ 1202.4, subd. (f)(1) [“defendant has the right to a hearing before 

a judge to dispute the determination of the amount of 

restitution”].)

In short, appellant’s attempt to challenge the restitution 

awards to the Estates by challenging the factual basis for the 

charges amounts to nothing more than an attempt to relitigate 

culpability. Appellant may not do so in this appeal from the 

restitution orders following his guilty plea. (In re Troy Z. (1992) 

3 Cal.4th 1170, 1181 [“a defendant ‘cannot admit the sufficiency 

of the evidence by pleading guilty [or nolo contendere] and then 

question the evidence by an appeal’ ”]; People v. Zuniga (2014) 

225 Cal.App.4th 1178, 1187 [by pleading guilty a defendant

admits all matters essential to the conviction]; see People v. 

Cisneros-Ramirez (2018) 29 Cal.App.5th 393, 399–400.) The trial 

court properly refused to entertain these contentions, as do we.
16

Appellant also challenges restitution to the Estates on the 

ground that “no representative or beneficiary of [the Estates] has 

ever made a claim for the theft of [the properties].” However, as 

set forth above, the prosecution has authority to seek restitution 

on a victim’s behalf under section 1202.4, subdivision (f). 

(Selivanov, supra, 5 Cal.App.5th at pp. 784–785; see Bernal, 

supra, 101 Cal.App.4th at p. 162.) The fact that no 

representative or beneficiary of the Estates submitted a claim for 

restitution is therefore immaterial.

Finally, appellant contends that because his criminal 

conviction on count 96 (relating to the Skarsten Estate property 

on Quincy Avenue) was for grand theft of personal, not real

property, and the prosecution did not obtain a Harvey waiver

(People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey)), neither Ms. 

Skarsten8 nor the Skarsten Estate was entitled to any 

restitution. The claim lacks merit. The “personal property” 

appellant admitted to stealing in entering his guilty plea to count 

96 consisted of the proceeds from the sale of the Quincy Avenue 

property, minus the offset for the repairs and payment to Ms. 

Skarsten.

The trial court employed a rational method for determining 

the appropriate amount of restitution owed to the Estates. There 

was no abuse of discretion. (Nichols, supra, 8 Cal.App.5th at 

p. 342.)

8 The trial court did not award restitution to Ms. Skarsten.
17

C. The superior court properly awarded restitution 

to the Lending Institutions and Guillermo Cilia 

based on the economic losses they sustained as a 

direct result of the criminal offenses to which 

appellant pleaded guilty, including the 

conspiracy to commit theft of personal property

1. The challenged restitution awards to the Lending 

Institutions and Guillermo Cilia

a. The $48,248.45 restitution award to Fannie Mae

based on counts 1 (conspiracy to commit grand theft of 

personal property) and 3 (grand theft of personal 

property) with respect to the property located at 2564 

Deauville Street in San Diego

In 2010 Gabriel and Claudia Eribez were in default on their 

2007 mortgage and sought appellant’s help to arrange a short 

sale of the property. Unbeknownst to Mr. Eribez, appellant had 

him sign a grant deed conveying the property as a gift to an 

entity controlled by appellant. But the handwritten notation “$0 

Gift” was added to the deed after Mr. Eribez had signed it: He 

had not intended the conveyance as a gift to anyone. The grant 

deed was recorded on July 13, 2010. Thereafter, Mr. Eribez 

rented the property back from one of appellant’s companies for

$1,400 a month, believing he would have the opportunity to 

repurchase the property.

On October 19, 2010, Mr. Eribez purportedly filed a lawsuit 

in Orange County Superior Court for fraud and other causes of 

action as to the Deauville property against a title company and 

two mortgage lenders. Mr. Eribez, however, did not file or 

authorize the lawsuit. Soon thereafter, a lis pendens was 

recorded on the Deauville property at the San Diego County 
18

Recorder’s Office by “Wolfe Legal Services,” and another lis 

pendens was filed in the Orange County Superior Court by a 

fictitious attorney. The Eribezes did not file or authorize the 

filing of either of these documents. Eventually, the lender, 

Fannie Mae, foreclosed, and a trustee’s deed upon sale was 

recorded on November 10, 2011.

The $48,248.45 restitution award to Fannie Mae included 

$25,848.45 in foreclosure costs and $22,400 for lost rental value, 

calculated at $1,400 per month during the 16-month period 

Fannie Mae was unable to secure the property for its use.

b. The $34,535 restitution award to Bank of America 

based on counts 1 (conspiracy to commit grand theft of 

personal property) and 54 (grand theft of personal 

property) with respect to the property located at 501 

South Courtney Avenue in Fullerton

Karla Cruz and Octavio Morales paid appellant $1,000 to 

arrange a loan modification for their property at 501 South 

Courtney Avenue. During the loan modification process, they 

were told they needed to sign a grant deed, which they did. They 

never got the loan modification. Instead, beginning in November 

2008, the couple was required to pay $695 per month in rent to 

appellant if they wished to remain in their home. They paid a 

total of $9,035 in rent for 13 months. Eventually, appellant 

purchased the property through one of his entities in a short sale 

from Bank of America. Upon the short sale, Bank of America 

paid an entity controlled by appellant a $9,000 commission and 

$16,500 to discharge a false lien placed on the property by 

appellant.

The superior court awarded restitution to Bank of America

in the sum of $34,535, plus interest. The award included $9,035 
19

for 13 months of lost rent, $16,500 paid on the false lien, and 

$9,000 paid as commission on the short sale.

c. The $66,300 restitution award to Bank of America 

based on counts 1 (conspiracy to commit grand theft of 

personal property) and 65 (grand theft of personal 

property) with respect to the property located at 1508 

Wavertree Lane in Fullerton

Francisca Guerrero sought defendants’ assistance to 

arrange a short sale of her home. Appellant forged Ms. 

Guerrero’s signature on a grant deed recorded July 3, 2009, 

conveying the property for no consideration to “George Penn,” a 

name defendants made up for a nonexistent person. Ms. 

Guerrero moved out after being threatened by defendants, and 

the property was then rented out for $1,400 per month. Bank of 

America, the lender on the property, foreclosed on the property 

on January 15, 2013, but appellant recorded a lis pendens in 

order to delay foreclosure.

The $66,300 restitution award, plus interest, to Bank of 

America included $7,500 in legal costs to reclaim the property 

and $58,800 rental value for the 42 months appellants were in 

wrongful possession and Bank of America was unable obtain 

value from the property.

d. The $112,117 restitution award to Guillermo Cilia 

based on counts 1 (conspiracy to commit grand theft of 

personal property) and 105 (grand theft of personal 

property) with respect to the property located at 15668 

Fairgrove Avenue in La Puente

In 2008 Guillermo Cilia and his wife, Veronica Castro, were 

going through a divorce, and Mr. Cilia wanted to sell the house. 

Although he was not in default on the mortgage, Mr. Cilia 
20

approached appellant to arrange a short sale of the property. 

Appellant told Mr. Cilia a short sale had occurred, but instead 

forged Mr. Cilia’s signature on a grant deed gifting himself the 

property. Appellant then paid off Mr. Cilia’s $175,393 loan on 

the property. The forged deed was recorded on March 23, 2009, 

and on September 22, 2010, appellant sold the property for 

$275,000, pocketing the proceeds.

Ms. Castro and her family were still living in the home 

when appellant assumed control of it. Appellant demanded that 

Ms. Castro pay $695 per month in rent to remain on the property. 

Ms. Castro, however, refused to pay rent because she had not 

signed the grant deed and she was still making payments on the 

mortgage. Appellant filed an unlawful detainer and evicted Ms. 

Castro from the home.

The superior court ordered restitution of $112,117, plus 

interest, to Mr. Cilia, consisting of $99,607 from the proceeds of 

the sale less repayment of the loan and $12,510 in lost rent for 

the 18 months appellant had wrongful possession of the property.

e. The $44,584.16 restitution award to Fannie Mae 

based on counts 1 (conspiracy to commit grand theft of 

personal property) and 16 (grand theft of real property) 

with respect to the property located at 10154 Camino 

Ruiz, No. 7 in San Diego

James Conway approached appellant to arrange a short 

sale of his property at 10154 Camino Ruiz, No. 7, although he 

was not in default on his mortgage at the time. Believing he was 

authorizing a short sale, Mr. Conway signed a grant deed 

conveying the property as a “bonafide gift” to an entity controlled 

by appellant. After recording the deed on February 10, 2010, 

appellant rented the property out for $1,395 per month; after six 
21

months the property was rented to a different tenant for $995 per 

month. On August 22, 2011, appellant filed a fraudulent lawsuit 

in connection with the property on behalf of “Jason Conway.” On 

the same day a notice of pendency of action was recorded by a 

fictitious attorney whose listed phone number was for a device in 

appellant’s office. Fannie Mae eventually foreclosed on the 

property on March 19, 2012, 25 months from the date of the 

fraudulent conveyance and after the dismissal of the sham 

lawsuit.

The superior court awarded restitution totaling $44,584.16,

plus interest, to Fannie Mae. The award consisted of $27,275 for 

lost rent and $17,309.16 in legal costs.

f. The $54,250 restitution award to JP Morgan Chase 

based on counts 1 (conspiracy to commit grand theft of 

personal property) and 33 (grand theft of real property) 

with respect to the property located at 4597 Acoma Way 

in San Diego

Thomas and Joni Dunn believed they were entering into a 

short sale of their property. Unbeknownst to the Dunns, the 

alleged short sale was to appellant, and the grant deed they 

signed was later modified to convey the property as a gift. The 

grant deed was recorded on February 25, 2010. Thereafter, 

appellant rented the property out at the rate of $1,750 per month 

until the tenants were evicted. Appellant and his coconspirators 

then stalled the eventual foreclosure of the property by posing as 

the Dunns and submitting false requests for short sale 

consideration and loan modifications to the lender, JPMorgan 

Chase, in order to coerce the lender into selling the property at a 

price below the property’s actual valuation. On October 2, 2012, 
22

31 months after appellant assumed control of the property, 

JPMorgan Chase foreclosed.

The superior court awarded JPMorgan Chase $54,250 in 

restitution, plus interest, for the 31 months of lost rental value.

g. The $16,250 restitution award to GMAC Mortgage 

based on count 40 (grand theft of real property) with 

respect to the property located at 1025 Osage Drive in 

Spring Valley

On January 25, 2010, Francisco Plazola signed a grant 

deed conveying his property to Reconveyance Trustee LLC in the 

belief that he was entering into a short sale of the property. 

Mr. Plazola did not know that the company was controlled by 

appellant, and unbeknownst to Mr. Plazola, the words “this is a 

bonafide gift” were later added to the signed deed. The deed was 

then recorded on August 20, 2010. On March 23, 2010, appellant

began collecting rent on the property at the rate of $1,250 per 

month. The lender, GMAC Mortgage, foreclosed on March 10, 

2011.

The superior court awarded GMAC Mortgage restitution in 

the amount of $16,250, plus interest, representing the 13 months 

of lost rental value at the rate of $1,250 per month.

h. The $99,472.50 restitution award to Bank of America 

based on counts 1 (conspiracy to commit grand theft of 

personal property) and 44 (grand theft of real property) 

with respect to the property located at 30633 San 

Anselmo Drive in Murrieta

In 2010 Mr. Plazola also sought appellant’s assistance to 

obtain a loan modification with respect to another property he 

owned, but appellant persuaded him to short sell the property 

instead. On January 25, 2010, believing they were entering into 
23

a short sale of the San Anselmo Drive property, Mr. Plazola and 

his wife signed a grant deed conveying the property to 

Reconveyance Trustee LLC. The Plazolas did not know that the 

company was controlled by appellant, and the language “this is a 

bonafide gift and the grantor received nothing in return” was 

added to the deed after the Plazolas signed it. The deed was then 

recorded on January 29, 2010. After taking control of the 

property, appellant rented it out for $1,750 per month. 

Eventually, on September 11, 2014, Bank of America foreclosed 

and gained control of the property, despite appellant’s attempt to 

prevent the lender from foreclosing by submitting a fraudulent 

short sale offer to buy the property.

The superior court’s $99,472.50 restitution award, plus 

interest, to Bank of America included $98,000 for 56 months of

lost rental value and $1,472.50 in legal costs.

i. The $43,750 restitution award to GMAC Mortgage 

based on count 28 (procuring and offering a false or 

forged instrument) with respect to the property located at 

4205 Lamont Street, No. 17 in San Diego

Believing she was authorizing a short sale of her property, 

Kathleen Vestevich signed a grant deed conveying the property to 

Reconveyance Trustee LLC, a company controlled by appellant. 

Although the grant deed indicates the conveyance was a 

“bonafide gift,” Ms. Vestevich did not intend to gift the property, 

and those words were not on the grant deed when she signed it. 

The grant deed was recorded on February 11, 2010. After 

gaining control of the property, appellant rented it out for $1,750 

per month. In an effort to delay foreclosure, defendants filed a 

fraudulent complaint and lis pendens in September 2010. 
24

Twenty-five months after appellant took possession, GMAC 

Mortgage, the lender, foreclosed on the property.

The superior court awarded GMAC Mortgage $43,750 in

restitution, plus interest, for 25 months of lost rental value.

j. The $67,496 restitution award to Bank of America 

based on count 75 (procuring and offering a false or 

forged instrument) with respect to the property located at 

210 South Montague Avenue in Fullerton

Lindsay Ott sought appellant’s assistance with a short sale 

of her home. Appellant falsely told Ms. Ott a short sale had 

occurred and had her sign a grant deed conveying the property to 

one of defendants’ fictitious entities. After Ms. Ott signed the 

deed, the language “no consideration/gift transfer” was added; 

Ms. Ott did not intend to convey the property as a gift, and no 

short sale ever occurred. Appellant rented the property out for 

$1,400 per month. Bank of America foreclosed on September 24, 

2012, 44 months after appellant obtained the property.

The court’s $67,496 restitution award, plus interest, to 

Bank of America included $61,600 for 44 months of lost rental 

value and $5,896 for legal costs.

k. The $36,050 restitution award to IndyMac/One West 

Bank based on counts 1 (conspiracy to commit grand 

theft of personal property) and 50 (mortgage fraud) with 

respect to the property located at 13636 Hollowbrook Way 

in Corona

On April 23, 2010, IndyMac/One West Bank, the lender on 

the Hollowbrook property, accepted a short sale for $324,654.83, 

of which the bank would receive $301,185.83. But the short sale 

was fraudulent: The purported buyer was a fictitious person 

made up by appellant, and no short sale for $324,654.83 occurred. 
25

Rather, the property was sold for $365,000 to an actual buyer on 

April 26, 2010. Although IndyMac/One West Bank received the 

agreed payout of $301,185.83, appellant was paid $24,950 for a 

false lien placed on the property, a $9,125 commission was paid 

to appellant’s realty company, and appellant’s escrow company 

received $1,975 in escrow fees.

The superior court awarded IndyMac/One West Bank 

restitution in the amount of $36,050, plus interest, consisting of 

$24,950 paid to appellant on the false lien, the $9,125 commission 

paid to appellant’s realty company, and $1,975 paid to appellant’s 

escrow company. The court reasoned that although the difference 

between the fraudulent short sale and the actual short sale was 

greater than the restitution award, $36,050 represented the 

wrongful gains by appellant as a result of the fraudulent 

transaction.

l. The $62,546.42 restitution award to Wells Fargo 

Bank based on counts 1 (conspiracy to commit grand 

theft of personal property) and 88 (mortgage fraud) with 

respect to the property located at 1250 Venice Avenue in 

Placentia

Douglas and Patricia Shrier owned the property at 1250 

Venice Avenue. In late 2009, Mrs. Shrier was suffering from 

dementia and the couple had taken some losses in the stock 

market, which prompted Mr. Shrier to seek appellant’s help in 

getting a loan modification. But appellant falsely told Mr. Shrier 

the loan modification request had been denied and persuaded 

him to do a short sale instead. On August 17, 2011, the lender on 

the property, Wells Fargo Bank, obtained a residential broker 

opinion that the property was valued at $465,000. But

defendants submitted fraudulent documents to the bank 
26

purporting to show that the best offers on the property were well 

below market value, and on December 23, 2011, the bank 

accepted a fraudulent short sale to appellant for $405,000.

The superior court awarded Wells Fargo Bank restitution 

in the amount of $62,546.42, plus interest. The award 

represented the lender’s legal costs plus the difference between 

the appraised market value of the property, $465,000, and 

$405,000, the amount for which it was sold in the fraudulent 

short sale.

m. The $54,250 restitution award to Bank of America 

based on counts 1 (conspiracy to commit grand theft of 

personal property) and 15 (forgery) with respect to the 

property located at 656 Ballard Street, No. 10 in 

El Cajon

Sergio Pulido approached appellant seeking a short sale of 

his home. Believing he was authorizing a short sale, Mr. Pulido 

signed a grant deed conveying the property to Reconveyance 

Trustee LLC, one of the companies appellant controlled. 

Although the grant deed indicates the conveyance was a 

“bonafide gift and the grantor received nothing in return,” Mr. 

Pulido had no intention of giving his property away, and those 

words were not on the grant deed when he signed it. The grant 

deed was recorded on December 14, 2009. Mr. Pulido’s ex-wife, 

Claudia Hatfield, continued to live at the property, paying rent to 

appellant at the rate of $875 per month. Appellant successfully 

delayed foreclosure by submitting fictitious below-market offers 

on the property. On February 18, 2015, 62 months after 

appellant wrongfully obtained the property, Bank of America, the 

lender, foreclosed.
27

The superior court awarded Bank of America $54,250 in 

restitution, plus interest, consisting of lost rental value at the 

rate of $875 per month for 62 months.

2. Analysis

a. The challenged restitution awards are supported by 

substantial evidence.

Running through appellant’s challenge to all of the 

restitution awards is the general assertion that the awards are 

not supported by substantial evidence. Specifically, appellant 

contends that no competent evidence was presented to support 

the prosecution’s restitution claims based on lost rent. Asserting 

that economic losses may not be established by the hearsay 

testimony of a nonvictim without documentary evidence to 

support the alleged losses, appellant claims that Donahue’s lay 

testimony, which he avers was unsupported by any written claim 

for or documentary evidence of the purported economic losses, 

should have been excluded or was entitled to no weight because it 

was not “ ‘factually credible.’ ”

Of course, in reviewing the sufficiency of the evidence for a 

trial court’s restitution order, “ ‘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.” ’ ” (Walker v. Appellate Division of 

Superior Court (2017) 14 Cal.App.5th 651, 656.) We neither 

reweigh nor reinterpret the evidence, but rather determine 

whether there is sufficient evidence to support the inference the 

trier of fact has drawn. (People v. Baker (2005) 126 Cal.App.4th 

463, 469.)

The prosecution carried its burden by presenting 

uncontroverted evidence of the economic losses sustained by the 
28

victims of appellant’s admitted criminal conduct through the 

testimony of the investigator on the case, Special Agent Donahue, 

and the investigative auditor. Donahue’s testimony was 

supported by extensive documentation of the instruments of 

defendants’ predatory real estate fraud scheme, including forged 

and fraudulent grant deeds, sham short sales, and fake lawsuits, 

lis pendens and other documents that were recorded to frustrate 

foreclosure on the properties and prolong the scheme. The 

prosecution also presented canceled checks from the rental of the 

misappropriated properties, not only to prove appellant’s illgotten gains, but also to establish a rational measure of economic 

damage for the lost use of these properties.

The fact that some of this evidence was hearsay did not 

render it inadmissible or incompetent. As set forth above, a trial 

court has expansive discretion as to the type of information and 

calculation methods that may be used in determining restitution. 

(Phu, supra, 179 Cal.App.4th at p. 283; see People v. Prosser

(2007) 157 Cal.App.4th 682, 691–692.) And section 1203.1d, 

subdivision (d) expressly prohibits exclusion of documentary 

evidence on hearsay grounds in determining restitution.

Appellant further contends that Donahue “testified 

repeatedly about the existence and contents of rent checks and 

receipts in the People’s possession” but not introduced into 

evidence at the restitution hearing. He claims that this 

testimony was inadmissible and should have been excluded 

under Evidence Code sections 1521 and 1523. According to 

appellant, in the absence of these documents that were critical to 

proving economic losses, the exclusion of Donahue’s testimony 

about them would have left the prosecution’s restitution claims 

unsupported by substantial evidence. But the testimony which 
29

appellant asserts was inadmissible occurred over just two pages 

of transcript, and referred only in general terms to the thousands 

of canceled checks from 20 to 30 bank accounts that represented 

payments to defendants. Donahue’s brief testimony lacked any 

detail about the checks or the specific properties to which they 

related, and was offered simply to explain⎯as a general 

matter⎯that tracing only the checks to determine the value of 

lost use of the properties caused by appellant’s fraudulent 

possession would be “difficult,” and in some cases impossible. In 

fact, because tenants often paid cash, and because the properties 

were not necessarily rented out for the entire duration of 

appellant’s wrongful possession, the sum of the checks 

themselves was not an accurate measure of the victims’ actual 

economic losses. Donahue’s testimony in this regard was 

properly admitted and accepted by the trial court.

Finally, appellant asserts in a series of footnotes that 

substantial evidence did not support the restitution awards to the 

Lending Institutions because the People’s evidence⎯in the form 

of canceled checks and receipts⎯showed defendants received 

substantially lower amounts of rent than the court awarded in 

restitution. But appellant offers no basis for limiting the 

calculation of economic loss to the illicit gains defendants actually 

extracted from the properties they misappropriated. Indeed, 

appellant’s formula would reward a defendant’s incompetence in 

failing to obtain full value from the stolen property, rather than 

making the victim whole. Constraining restitution in this 

manner would thus run afoul of the statutory mandate that the 

restitution award fully reimburse the victim for all economic 

losses sustained as a result of the defendant’s criminal conduct. 

(§ 1202.4, subd. (f)(3); Stanley, supra, 54 Cal.4th at p. 737; 
30

Giordano, supra, 42 Cal.4th at p. 656.) The canceled checks and 

receipts introduced by the People constituted substantial 

evidence of the rental value of the properties, but they did not tell 

the whole story of the victims’ economic losses for which they

were entitled to be reimbursed.

b. The Lending Institutions and Mr. Cilia were victims 

of appellant’s criminal conduct, and the prosecution 

properly sought restitution on their behalf.

Appellant challenges the restitution awards on the grounds 

that the lenders and Mr. Cilia suffered no economic losses from 

the offenses to which appellant pleaded guilty because they were 

not identified as victims in the indictment and they did not 

submit claims for restitution. As set forth above, however, under 

section 1202.4, subdivision (f), the People were authorized to 

make a restitution claim and establish economic losses on behalf 

of any person or entity that suffered harm as a direct result of 

appellant’s criminal conduct. (Selivanov, supra, 5 Cal.App.5th at 

pp. 784–785.) The victims on whose behalf the People sought 

restitution need not have been named in the indictment (People v. 

Martinez (2017) 10 Cal.App.5th 686, 724–725 [upholding 

restitution to unnamed victim of conspiracy]; Walker, supra, 231

Cal.App.4th at p. 1276), nor is there any requirement that the 

People present a written statement by victims detailing their 

economic losses (Selivanov, at pp. 784–785).

Here, because the Lending Institutions and Mr. Cilia 

suffered economic losses through the deprivation of the value and 

use of their properties as a direct result of appellant’s admitted 

criminal conduct, they were clearly “victims” as defined by 

statute, even though they were not named in the counts to which 

appellant pleaded guilty.
31

c. Lost rental value was a rational and appropriate 

measure of economic loss for the period in which 

appellant was in wrongful possession of the properties.

Appellant contends that the People improperly sought, and 

the court abused its discretion in awarding, restitution on the 

basis of theories of liability and measures of economic loss 

unrelated to the charges in the indictment. Specifically, he 

alleges that the prosecution impermissibly changed the “theory of 

mortgage fraud from the theory alleged in the indictment, and 

added mortgage fraud claims not pleaded in the indictment.” 

According to appellant, “[t]his post-plea, post-Wolfe’s death 

addition of new claims with their new theory of and measure of 

economic losses for mortgage fraud is a clear Sixth Amendment 

violation.” Appellant goes on to assert⎯without legal 

support⎯that lost rents do not constitute a valid measure of 

economic loss for mortgage fraud. And because all the restitution 

awards to the Lending Institutions were based on a theory of 

mortgage fraud, the types and amounts of economic losses the 

prosecution asserted (specifically, lost rental value) bore no 

relation to any actual economic losses sustained.

Contrary to appellant’s contentions, the only theory of loss 

on which the People proceeded was that any victim who 

sustained economic losses as a direct result of appellant’s 

criminal conduct with respect to each property and count of 

conviction was entitled to reimbursement.9 (§ 1202.4, subd. (f); 

9 In support of his claim that the prosecution 

“impermissibly changed” its theory of restitution, appellant cites 

section 1009, which generally prohibits the amendment of a 

charging document following a guilty plea. Appellant’s argument 
32

Stanley, supra, 54 Cal.4th at p. 737; Giordano, supra, 42 Cal.4th 

at p. 656.) The prosecution’s pursuit of this theory of restitution, 

based on article I, section 28, subdivision (b) of the California 

Constitution and section 1202.4 of the Penal Code, did not 

implicate, much less violate appellant’s Sixth Amendment rights. 

(See People v. Foalima (2015) 239 Cal.App.4th 1376, 1398–1399 

[no Sixth Amendment right to jury trial on restitution issues]; 

People v. Pangan (2013) 213 Cal.App.4th 574, 585 [“direct victim 

restitution is a substitute for a civil remedy so that victims of 

crime do not need to file separate civil suits. It is not increased 

‘punishment’ ”].)

In seeking restitution on behalf of a victim, it is the 

People’s burden to present to the trial court a rational basis for 

calculating the victim’s economic loss that is supported by the 

evidence. (Selivanov, supra, 5 Cal.App.5th at p. 788; Taylor, 

supra, 197 Cal.App.4th at p. 761.) The trial court may then fix 

restitution using the prosecution’s formula as long as it is

rational and reasonably calculated to make the victim whole. 

(Giordano, supra, 42 Cal.4th at pp. 663–664; Nichols, supra, 

8 Cal.App.5th at p. 342.) However, “the amount ordered as 

restitution need not mirror what a victim might obtain in a civil 

action,” nor does a trial court abuse its discretion in awarding 

restitution that does not reflect the exact amount of the loss. 

(Bernal, supra, 101 Cal.App.4th at p. 162; People v. Akins (2005) 

128 Cal.App.4th 1376, 1382.)

in this regard is nonsense. Section 1009 has no application here: 

The prosecution’s theory of restitution⎯that the victims of the 

crimes of which appellant was convicted were entitled to 

restitution⎯did not (and could not) “amend” the indictment or in 

any way “change” the offenses to which appellant pleaded guilty.
33

The prosecution met its burden here by adducing 

competent evidence that while appellant was in wrongful 

possession of the properties, the lenders were unable to obtain 

value from those properties. A rational measure of that lost 

value was the monthly rent appellant charged (or reasonably 

could have obtained) while he controlled the properties. Once the 

prosecution made this prima facie showing of loss, the burden 

shifted to appellant to show the loss was other than the 

prosecution claimed, and it was up to the trial court to determine 

which party had met its respective burden. (Kelly, supra, 59 

Cal.App.5th at pp. 1183–1184; People v. Sy (2014) 223 

Cal.App.4th 44, 63.) In light of appellant’s failure to offer any 

evidence challenging the amounts of restitution sought by the 

People on behalf of the Lending Institutions and Mr. Cilia, the 

trial court did not abuse its discretion in awarding restitution to 

the victims in those amounts. (Keichler, supra, 129 Cal.App.4th 

at p. 1048.)

d. The superior court properly awarded restitution based 

on economic losses suffered as a direct result of the 

crimes to which appellant pleaded guilty.

Appellant contends that the People’s failure to obtain 

Harvey waivers as to the 96 counts dismissed following 

appellant’s plea agreement precluded restitution to victims whose 

economic losses were the result of criminal conduct alleged in the 

counts that were dismissed. But as set forth above, the economic 

losses were shown to be a direct result of the crimes charged in 

the counts to which appellant pleaded guilty. Thus, the absence 

of a Harvey waiver was irrelevant.

In Harvey, supra, 25 Cal.3d at page 758, the California 

Supreme Court held that a sentencing court may not consider 
34

any facts underlying a dismissed count for the purpose of 

aggravating or enhancing the defendant’s sentence. The court 

explained that, implicit in a plea bargain in which the defendant 

pleads guilty to one count in consideration for dismissal of 

another “is the understanding (in the absence of any contrary 

agreement) that defendant will suffer no adverse sentencing 

consequences by reason of the facts underlying, and solely 

pertaining to, the dismissed count.” (Ibid., italics added; K.R. v. 

Superior Court (2017) 3 Cal.5th 295, 304.) That “contrary 

agreement” became known as a Harvey waiver, which was 

codified to apply to victim restitution with the enactment of 

section 1192.3, subdivision (b): “If restitution is imposed which is 

attributable to a count dismissed pursuant to a plea bargain, as 

described in this section, the court shall obtain a waiver pursuant 

to People v. Harvey (1979) 25 Cal.3d 754 from the defendant as to 

the dismissed count.”

Appellant’s guilty plea included the conspiracy to commit 

grand theft of personal property charged in count 1, making 

appellant liable for restitution to all direct victims of the criminal 

conspiracy where his criminal conduct led to those victims’ 

economic losses. (People v. Martinez, supra, 10 Cal.App.5th at 

pp. 724–725.) Only three properties were not part of the 

conspiracy: 1025 Osage Drive in Spring Valley (count 40, grand 

theft of real property), 4205 Lamont Street, No. 17 in San Diego 

(count 28, procuring and offering a false or forged instrument⎯lis 

pendens), and 210 South Montague Avenue in Fullerton (count 

75, procuring and offering a false or forged instrument⎯lis 

pendens). But the prosecution’s evidence established that GMAC 

Mortgage (counts 40 and 28) and Bank of America (count 75) 

suffered economic losses as a direct result of the admitted 
35

criminal conduct underlying appellant’s guilty pleas to counts 40, 

28, and 75. Because the restitution awards were based on losses 

attributable to the counts to which appellant pleaded guilty, no 

Harvey waiver was required.

e. Appellant may be entitled to a credit for restitution 

payments made by any of the codefendants only after 

such contributions are actually made.

Appellant contends that the superior court abused its 

discretion in failing to offset the restitution orders against 

appellant by $245,834.60 in restitution paid by the codefendants. 

In a criminal case with multiple defendants, the trial court has 

the authority to require codefendants to pay restitution jointly 

and severally. (Nichols, supra, 8 Cal.App.5th at p. 347.) When 

the court makes such an order, each defendant is entitled to a 

credit for any actual payments made by the other. (People v. 

Blackburn (1999) 72 Cal.App.4th 1520, 1535.) The Attorney 

General has no objection to any offset for restitution made by any 

codefendant, and the trial court also recognized that such an 

offset would be appropriate. However, no payments appear to 

have been made by any of the codefendants; until they are, 

appellant’s claim is premature. (Eye Dog Foundation v. State 

Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [the 

duty of every court “ ‘ “is to decide actual controversies by a 

judgment which can be carried into effect, and not to give 

opinions upon moot questions or abstract propositions, or to 

declare principles or rules of law which cannot affect the matter 

in issue in the case before it” ’ ”]; People v. Pipkin (2018) 27 

Cal.App.5th 1146, 1149.)
36

II. The Superior Court Properly Awarded Interest 

on the Stipulated Amount of Unpaid Taxes 

Owed to the Franchise Tax Board

Appellant contends that “[p]er [his] plea agreement, his 

restitution to [the Franchise Tax Board] was fixed at $140,754, 

an amount that necessarily included accrued interest and 

penalties up to either June 26, 2015, the date his plea was 

entered, or July 17, 2017, the date judgment was entered against 

him.” The record contradicts appellant’s claim.

As part of his plea agreement, appellant stipulated to 

restitution in the amount of $140,754 in unpaid taxes to the 

Franchise Tax Board. The sum did not include interest.10 At the 

conclusion of the restitution hearing, the superior court ordered 

appellant’s estate to pay restitution in the stipulated amount to 

the Franchise Tax Board, “plus applicable interest.” The court 

elected to impose interest from the date of loss rather than the 

date of sentencing, in accordance with section 1202.4, subdivision 

(f)(3)(G).11

10 Several exhibits submitted by the prosecution at the 

restitution hearing refute appellant’s claim: People’s exhibit 96, 

setting forth the calculation of appellant’s unpaid taxes, showed 

taxes due in the amounts of $63,843 for 2009, $57,106 for 2010,

and $19,805 for 2011, for a total of $140,754 without interest;

People’s exhibit 97a detailed the prosecution’s calculation of 

interest separate and apart from the amount of unpaid taxes; and 

People’s exhibit 98 listed the $140,754 in unpaid taxes with an 

additional $26,665.06 owed in accrued interest.

11 Section 1202.4, subdivision (f)(3) provides in relevant 

part: “To the extent possible, the restitution order . . . shall be of 

a dollar amount that is sufficient to fully reimburse the victim or 
37

Thus, contrary to appellant’s assertion, the record plainly 

shows the stipulated amount of restitution owed to the Franchise 

Tax Board did not include interest. The superior court properly 

exercised its discretion in awarding interest from the date of loss, 

and the inclusion of interest did not give the Franchise Tax Board 

an impermissible windfall, as appellant claims.

Finally, appellant argues that interest should be capped as 

of June 26, 2015, when he entered his plea, or at the latest, 

July 21, 2017, the date of sentencing. Appellant asserts that the 

estate “should not [be] responsible for interest accruing on [the] 

award from the date the People were entitled to pay off [the 

Franchise Tax Board] . . . yet with no justification have not done 

so.” But the prosecution was not authorized to recover the

stipulated restitution on behalf of the Franchise Tax Board until 

the superior court accepted the stipulation. (See People v. 

McCurdy (2014) 59 Cal.4th 1063, 1100 [trial court was not 

required to accept stipulation offered by defendant]; People v. 

Rogers (2013) 57 Cal.4th 296, 329–330.) The court’s acceptance of 

the stipulation did not occur until the court issued its 

memorandum of decision following the restitution hearing, which 

the parties agreed would not take place until after the case was 

resolved against all defendants.

Moreover, after the sentencing hearing and even since the 

superior court issued the memorandum of decision, appellant has 

been responsible for the ongoing accrual of interest on the 

victims for every determined economic loss incurred as the result 

of the defendant’s criminal conduct, including, but not limited to,

all of the following: [¶] . . . [¶] (G) Interest, at the rate of 10 

percent per annum, that accrues as of the date of sentencing or 

loss, as determined by the court.”
38

restitution. First, appellant delayed the restitution hearing at 

which the superior court accepted the stipulation by filing an 

appeal following his guilty plea. That delay was followed by the 

delay caused by the special administrator’s challenge to the 

restitution order in the instant appeal. Accordingly, until this 

appeal is concluded and the judgment is final, the People will be 

foreclosed from recovering the stipulated restitution on behalf of 

the Franchise Tax Board, and interest on that award will 

continue to accrue.

DISPOSITION

The superior court’s March 9, 2020 restitution order is 

affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.