Filed 9/4/15 P. v. Avila-Castro CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, 

v.

DIANA LISETH AVILA-CASTRO,

Defendant and Appellant.

B256978

(Los Angeles County

Super. Ct. No. KA102377)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Mike Camacho, Judge. Affirmed.

Cynthia L. Barnes for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Michael C. Keller and Rene 

Judkiewicz, Deputy Attorneys General, for Petitioner and Respondent.

_____________________
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INTRODUCTION

Defendant and Appellant Diana L. Castro appeals from the trial court’s judgment 

ordering Defendant to pay restitution in the amount of $417,663.95 to the victims of her 

grand theft by embezzlement, to which she pleaded no contest. Defendant asserts that the 

court abused its discretion in making the restitution order because the amount awarded 

was in part based on speculation. Defendant asserts that the State failed to prove with 

sufficient evidence that certain losses were caused by Defendant’s criminal conduct. We 

affirm because substantial evidence in the form of victim testimony supported the court’s 

restitution order.

FACTS AND PROCEDURAL BACKGROUND

From 2008 to May 2013, Defendant worked as the accounting manager for N.C.

Star, Inc., a business owned by Carson Cheng that imported sporting goods from China 

into the United States. Defendant had access to N.C. Star’s business accounts, and 

utilized N.C. Star’s credit cards to make purchases for her personal benefit without 

authorization from N.C. Star or Cheng. Cheng discovered Defendant’s embezzlement in 

May 2013. Defendant pleaded no contest to two counts of grand theft by embezzlement 

under Penal Code1section 487, subdivision (a), and admitted that in the commission of 

the theft, she took property of a value exceeding $200,000 within the meaning of section 

12022.6, subdivision (a)(2).

At the restitution hearing, Cheng testified about Defendant’s role in managing the 

company’s finances and her access to the company’s credit cards. Cheng testified how 

he discovered many unauthorized charges on several company credit cards, determined 

that they were made by Defendant for her personal use, and fired Defendant. Cheng 

testified that the unauthorized charges by Defendant totaled $417,663.95. This number 

comprised of $133,839.18 in online postage purchases on postagestamps.com, 

$35,185.75 in purchases on gift card exchange websites, $53,366.86 in PayPal purchases, 

1 All subsequent statutory references are to the Penal Code, unless otherwise 

indicated.
3

and $195,272.16 in other online purchases. Cheng based his calculations on his review 

of the credit card accounts, his notes, his authorizations, and his discussions with 

company managers who held company credit cards in their name. Many of the purchases 

were made on Capital One and Bank of America company-issued credit cards that were 

under the names of several managing employees, and on Cheng’s Costco credit card. 

Cheng testified that when he confronted Defendant, she admitted that she stole from the 

company and told him that she “saw the opportunity.” Defendant then offered to pay 

Cheng $300,000 so that Cheng would not press charges.

In response, Defendant testified that although she made purchases on one 

particular employee’s credit card, she did not recall making purchases using other 

employees’ credit cards. Defendant denied using her employee credit card for personal 

purposes and denied accessing other employees’ cards. Defendant also denied having 

access to the company account to make the online postage purchases, and denied sending 

any packages for her personal gain or use. Defendant admitted that she told Cheng she 

was responsible for a certain amount of damages, opined that she was never given the 

chance to compute the damages, and asserted that she was only responsible for a portion 

of the damages claimed by Cheng. Defendant admitted that she had made online 

purchases but did not keep a record of her spending.

The court evaluated the testimony and stated that Cheng did his best to itemize the 

amounts stolen by Defendant and provide the court with the amount of the company’s

loss. In contrast, the court noted that Defendant “was unable in her own testimony to 

even give the court an estimate as to the amount of money that she took from N.C. Star. 

[Defendant] wouldn’t even render a guess, simply just said, I don’t know.” The court 

explained that it was concerned that “[i]f [Defendant] doesn’t know how much money 

she took from N.C. Star, how can she tell us that these amounts are not accurate?” The 

court subsequently found that the amount of losses provided by N.C. Star and Cheng 

were accurate. The court then sentenced Defendant to three years, four months in county 

jail, and ordered Defendant to pay $417,663.95 to N.C. Star and Cheng.
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DISCUSSION

The sole issue on appeal is whether the amount of restitution ordered by the court 

was supported by substantial evidence. “In reviewing the sufficiency of the evidence [to 

support a factual finding], 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. [Citations.]” (People v. Baker (2005)

126 Cal.App.4th 463 468–469.) “ ‘When there is a factual and rational basis for the 

amount of restitution ordered by the trial court, no abuse of discretion will be found by 

the reviewing court.’ ” (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)

Pursuant to Penal Code section 1202.4, subdivision (f), “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.” “Once the victim has made a prima facie showing of 

his or her loss, the burden shifts to the defendant to demonstrate that the amount of the 

loss is other than that claimed by the victim.” (People v. Prosser (2007) 157 Cal.App.4th 

682, 691.) 

Here, Defendant asserts that the State did not establish by sufficient evidence that 

the unauthorized charges appearing on fellow employees’ Capital One credit cards and 

the charges made online at postagestamps.com were the result of Defendant’s criminal 

behavior. Defendant argues that “[t]he victim’s surmise and speculation that [Defendant] 

was somehow the cause and responsible for these charges and purchases should not have 

been a substitute for the required amount of evidentiary proof.”
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We disagree as substantial evidence supports the court’s findings. In regard to the 

Capital One credit card purchases, Cheng testified that he provided Defendant with one 

of the several Capital One credit cards on the company’s account issued to N.C. Star 

managers. Employees were authorized to use Capital One credit cards solely for 

company travel-related expenses. Cheng testified that without his knowledge, Defendant 

made herself an administrator of the company’s Capital One account. As an account 

administrator, Defendant was the only person, other than Cheng, who had access to each 

employee’s credit card number. Cheng explained that Defendant used other employees’ 

credit card numbers to make unauthorized online purchases for her own personal benefit. 

Cheng identified the charges that were attributable to Defendant by reviewing his own 

notes regarding charges he authorized and discussing the charges with each employee 

who was issued a card.

As to the postagestamps.com purchases, Cheng determined that these were 

unauthorized because his company shipped merchandise primarily via UPS, averaging 

between $7,000 to $10,000 per week in UPS charges. He testified that the company 

infrequently used the United States Postal Service, averaging only $400 to $500 in 

postage per month. Cheng personally knew this amount because 80 to 90 percent of the 

time, he and his warehouse manager personally delivered the packages to the post office. 

Cheng testified that in reviewing the bills, he saw that Defendant had purchased 

anywhere from $100 to $500 in a single day in postage, and the amounts of postage billed 

went well above the $400 to $500 authorized amount. Cheng calculated the online 

postage charges attributable to Defendant’s unauthorized purchases by adding up the 

postage charges over the authorized $400 to $500 monthly postage. Cheng stated that 

Defendant never had authority to make any postage purchase online or otherwise.

We conclude that Cheng’s testimony and accounting of Defendant’s unauthorized 

expenditures as to the Capital One credit cards and the online postage purchases 

constitutes substantial evidence supporting the court’s restitution order. “Section 1202.4 

does not, by its terms, require any particular kind of proof.” (People v. Gemelli (2008) 

161 Cal.App.4th 1539, 1542-1543 [The probation officer’s report with a handwritten 
6

statement from the victim listing the grand total losses was sufficient to make a prima 

facie showing of the victim’s loss.].) A victim’s uncorroborated statement of losses is 

sufficient to make a prima facie showing of his or her loss. (Ibid.) “ ‘This is so because 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.) Here, Cheng’s testimony, which set forth his company’s losses caused by 

Defendant’s theft and his method for assessing Defendant’s unauthorized purchases, 

made a prima facie showing of N.C. Star’s losses.

Because the State met its burden in making a prima facie case, the burden shifted 

to Defendant to show that the amount of the loss was less than that claimed by N.C. Star. 

As the court pointed out, Defendant could not tell the court how much she embezzled, 

and simply denied making purchases for online postage and using particular employee’s 

credit cards. This is not sufficient to rebut the State’s prima facie case regarding the 

victim’s losses. As the court explained, “It would be different if [Defendant] would have 

said through sworn testimony that I remember taking this amount, this amount and this 

amount, and this is how much I had at the end of the day regardless of how I used those 

funds, and it’s different from what Mr. [Cheng] is claiming... [But Defendant]’s not able 

to do that because she just simply didn’t track how much money was taken.” We agree 

that the Defendant failed to meet her burden below.

Based on the foregoing, we conclude that substantial evidence supports the trial 

court’s restitution order. We therefore affirm. 
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

I concur:

EDMON, P. J.

ALDRICH, J.