Filed 4/16/21 P. v. Kapral CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT MARK KAPRAL,

Defendant and Appellant.

F079198

(Super. Ct. No. BF160559A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Ralph W. 

Wyatt, Judge.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and 

Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooRobert Mark Kapral was involved with various business entities in a joint venture 

to purchase and develop 80 acres of land. His dealings with the business culminated in 
2.

charges for embezzlement (Pen. Code,1 § 508) and grand theft (§ 487, subd. (a)). 

Additional tax evasion charges followed (Rev. & Tax. Code, § 19706). 

The alleged victims to the theft crimes were McFarland Partners LLC (McFarland) 

and VDC LLC (VDC). Kapral eventually settled his case via negotiated plea with the 

district attorney.2 The agreement reached by the parties entailed a conviction to an 

amended tax evasion charge (Rev. & Tax. Code, § 19705, subd. (a)(1)), restitution to the 

state Franchise Tax Board, and the dismissal of the original charges.

Central to this appeal, the negotiated plea included an agreement for a future 

“restitution hearing/bench trial” to determine restitution on the dismissed charges. In 

addition, the plea form included a typical Harvey3 waiver.4 At the plea hearing, Kapral’s 

counsel informed the court, “[T]he restitution hearing on those dismissed counts ... will 

be basically a bench trial where [Kapral] will also be able to, on those dismissed counts, 

raise his defenses.” The hearing then concluded “with a Harvey waiver for all purposes” 

by the district attorney. 

The case thereafter devolved into contentious litigation over restitution between 

Kapral, the district attorney, and the attorney for victims McFarland and VDC. Kapral 

maintained he entered into an agreement for a bench trial to determine restitution. The 

1 Undesignated statutory references are to the Penal Code. 

2 The negotiated plea was entered into after a preliminary hearing at which Kapral 

was held to answer on all charges. 

3 People v. Harvey (1979) 25 Cal.3d 754. “A [typical] Harvey waiver permits the 

sentencing court to consider the facts underlying dismissed counts and enhancements 

when determining the appropriate disposition for the offense or offenses of which the 

defendant stands convicted.” (People v. Munoz (2007) 155 Cal.App.4th 160, 167.)

4 The waiver in this case, signed by Kapral, reads: “I understand that although 

some charges will be dismissed as a result of my plea of guilty or no contest, I agree that 

the sentencing judge may nevertheless consider the facts underlying the dismissed 

counts/cases, including determining any additional restitution that I may have to pay, in 

deciding the sentence in my case.”
3.

victims’ attorney argued restitution should be determined by applying standard restitution 

law.

Ultimately, the court ruled it would conduct a standard restitution hearing where 

Kapral could not present a comparative fault defense but could otherwise contest alleged 

damages. Kapral never moved to withdraw his plea and, after the restitution hearing 

concluded, was ordered to pay more than $1,000,000 in restitution.

Kapral now raises the following claims: 1) He was entitled to specific performance 

of his negotiated plea, i.e., a full bench trial without limitation; 2) The damages were not 

proven with adequate foundation; and 3) The court erroneously ruled comparative fault 

did not apply. We make the following findings and affirm the restitution order.

First, an agreement to determine restitution in contravention of standard restitution 

law is against public policy and void. Second, Kapral forfeited his right to withdraw his 

plea. Third, the restitution order was adequately supported. Fourth, the court properly 

determined comparative fault did not apply as a defense.

I. Kapral Was Not Entitled To A Bench Trial To Determine Restitution

Kapral argues the restitution “hearing [was] completely at odds with the plea 

bargain entered into and agreed to by all the parties, and requires reversal of the 

restitution order and remand to the trial court.” He contends “[t]hat the agreement here 

deviates from a typical Harvey waiver does not render it invalid ....” 

The People argue Kapral “entered a Harvey waiver on the dismissed charges, so 

he lacked the right to dispute liability. Also, if he did not get his anticipated plea-bargain 

benefit, then he should have moved to withdraw his plea, but he failed to timely do so 

and thereby forfeited that remedy. And even if a bench trial had been bargained for, that 

was legally unauthorized, so specific performance is improper.” 

We agree with the People the bench trial bargain was unauthorized. Because 

Kapral failed to withdraw his plea, he forfeited any claim he did not receive the benefit of 

his bargain.
4.

A. Additional Background

The “restitution hearing/bench trial” issue first arose at the initial sentencing 

hearing. Present at this hearing was Kapral’s counsel and a deputy district attorney. 

Notably, the district attorney at the sentencing hearing was not the same attorney who 

entered into the plea. 

Kapral’s counsel informed the court he had discussed setting a trial date with the 

victims’ attorney. The court interjected, “Not really a bench trial, right?” Counsel 

responded, “Well, it is ....” The district attorney agreed that was his understanding. 

Several months of litigation followed.

At the next hearing, the victims’ attorney appeared and argued, “[T]he plea 

agreement says [Kapral] gets a hearing/bench trial. It doesn’t say he gets guaranteed a 

bench trial.” The court set another hearing to sort out “any ambiguity with what the 

agreement was ....” 

Many briefs were filed regarding the issues involved. Kapral argued “[t]he plea 

agreement ... [was] clear” and “the rules of a bench trial would apply where” he “would 

be permitted to present his defense ....” The victims’ attorney replied “a trial on merits 

of the dismissed theft causes of action [was] in contravention of the Harvey Waiver” and

inconsistent with “the Victims’ Bill of Rights.” 

The same deputy district attorney from the sentencing hearing now also opposed 

Kapral’s argument. The district attorney claimed Kapral could withdraw his plea but was 

otherwise bound by the Harvey waiver and thus did “not have the right to dispute guilt or 

liability” for restitution.

In a subsequent filing, Kapral explained his defense to restitution was essentially 

that of quantum meruit, i.e., he had earned the money in issue.5

5 “Quantum meruit refers to the well-established principle that ‘the law implies a 

promise to pay for services performed under circumstances disclosing that they were not 

gratuitously rendered.’ ” (Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 458.)
5.

 In a “final” brief, he sought “to enforce [the] plea agreement as a contract with 

[the] Court and the State of California.” He reiterated his request to “apply the doctrine 

of comparative negligence to reduce the award of victim restitution against a criminally 

negligent defendant when the court finds that the victim’s contributory negligence was a 

substantial factor in causing the victim’s injuries” and acknowledged his right to 

withdraw his plea due to “unanticipated” restitution. 

The parties appeared in court a few days after the “final” brief was filed. At that 

time, Kapral’s attorney mentioned the right to withdraw the plea “if the restitution 

perimeters [sic] were different than the” plea agreement. He then asked for a tentative 

ruling regarding the “restitution hearing/bench trial” issue because he did not “want to get 

in a situation where [they] signed up for something or [Kapral] signed up for something 

potentially he didn’t think was the same thing.” The court declined to issue a tentative 

ruling and announced it would issue a “written ruling ....” 

The court subsequently issued the written ruling explaining how restitution would 

proceed. The ruling first acknowledged the court was dealing with “Direct Victim 

Restitution pursuant to § 1202.4(f) and not the broader form of restitution as a condition 

of probation pursuant to §1203.1.” It then stated Kapral agreed to a standard Harvey 

waiver and concluded, “[a]fter making a Harvey Waiver, a defendant cannot present 

evidence he or she was innocent of the charges dismissed on the terms of the plea bargain 

in order to avoid payment of restitution.”6 It also ruled the plea bargain “term ‘restitution 

hearing/bench trial’ ” was “a misnomer stated in the alternative” and there was no right to 

trial on restitution. 

Finally, the court found “neither [it] nor the parties have the authority to agree to 

conduct a bench trial in lieu of a restitution hearing.” It explained specific performance 

6 The rule “a defendant cannot present evidence he or she was innocent of the 

charges dismissed on the terms of the plea bargain in order to avoid payment of 

restitution” expresses the holding of People v. Weatherton (2015) 238 Cal.App.4th 676.
6.

was not possible because victim restitution is mandated by the California Constitution 

and there is “no discretion or authority to impose a negotiated sentence that provides for 

an award of less than full restitution.” Because Kapral may have reasonably believed the 

restitution process would proceed differently, the ruling acknowledged his right to 

withdraw his plea. 

B. Analysis

“This appeal concerns direct restitution, the right to which was created in 1982 

when California voters passed Proposition 8, also known as the Victims’ Bill of Rights. 

[Citation.] The initiative added article I, section 28, subdivision (b) to the Constitution 

[citation], which in its current form establishes specific, enumerated rights ‘[i]n order to 

preserve and protect a victim’s rights to justice and due process.’ (Cal. Const., art. I, 

§ 28, subd. (b).) Among those rights is direct restitution, which is defined expansively: 

‘(A) 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 shall have the right to seek and secure 

restitution from the persons convicted of the crimes causing the losses they suffer. 

(B) Restitution shall be ordered from the convicted wrongdoer in every case, regardless 

of the sentence or disposition imposed, in which a crime victim suffers a loss.’ 

(Id., subd. (b)(13)(A), (B).) As these rights are not self-executing, the Legislature was 

directed to adopt implementing legislation. [Citation.] The array of laws subsequently 

passed was eventually consolidated into section 1202.4.” (People v. Brooks (2018) 

23 Cal.App.5th 932, 940.)

The “right to restitution is a constitutional one ....” (People v. Pierce (2015) 

234 Cal.App.4th 1334, 1337.) “Victim restitution may not be bargained away by the 

People. ‘The Legislature left no discretion or authority with the trial court or the 

prosecution to bargain away the victim’s constitutional and statutory right to restitution. 

As such, it cannot properly be the subject of plea negotiations.’ ” (People v. Brown 
7.

(2007) 147 Cal.App.4th 1213, 1226; People v. Gross (2015) 238 Cal.App.4th 1313, 

1318.)

“It is of course axiomatic that when a plea bargain is made the defendant is 

entitled to withdraw his plea if the negotiated bargain is incapable of actual fulfillment.” 

(People v. Morris (1979) 97 Cal.App.3d 358, 362.) “It is not error for the trial court to 

sentence a defendant to a term in excess of the negotiated disposition if it first allows the 

defendant the opportunity to withdraw therefrom. Once the opportunity is extended, the 

defendant must timely move to withdraw the guilty plea. ... The defendant may not 

gamble on the outcome of the hearing and then successfully complain after an adverse 

ruling.” (People v. Gordon (1991) 229 Cal.App.3d 1523, 1527.)

Because victim restitution is a constitutional right, the trial court here properly 

determined neither it nor the parties could agree to contravene the restitution procedure 

codified by section 1202.4.7 “Specific performance of the plea agreement would 

undermine the [restitution] law and, in so doing, undermine public policy ....” (People v. 

Renfro (2004) 125 Cal.App.4th 223, 233.) Kapral’s claim the trial court erred in holding 

a standard restitution hearing is rejected and his request for specific performance fails.8

The remedy available to Kapral in this circumstance was to withdraw his plea. He 

was well aware of that right. It was mentioned by his attorney and the opportunity was 

7 The fact the trial court based its ruling on more than the unenforceable nature of 

the plea agreement is of no concern. “ ‘ “No rule of decision is better or more firmly 

established by authority, nor one resting upon a sounder basis of reason and propriety, 

than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely 

because given for a wrong reason. If right upon any theory of the law applicable to the 

case, it must be sustained regardless of the considerations which may have moved the 

trial court to its conclusion.” ’ ” (People v. Turner (2020) 10 Cal.5th 786, 807.)

8 Kapral points out that the prosecutor could have dismissed the charges without a 

Harvey waiver which would have undermined the victims’ “right to restitution on the 

dismissed charges.” That is true. In that situation, a defendant might well receive a 

windfall or temporary reprieve due to the prosecutor’s inadvertence or negligence. But it 

does not follow a specific bargain for such an outcome is lawful.
8.

extended to him by the court, yet he never moved to withdraw his plea. “[T]he failure 

affirmatively to request a [withdrawal] of plea does waive the right to do so.”9 (People v. 

Walker (1991) 54 Cal.3d 1013, 1025.) Accordingly, we find Kapral waived his right to 

withdraw his plea and it is no longer an available remedy.

II. Restitution Was Properly Founded

Kapral takes primary issue with the award of attorney fees and his inability to 

cross-examine the victims’ attorney.10 He argues “[t]he ‘victim’ never presented any 

evidence here” and, because the victims’ attorney did not testify, the attorney “couldn’t 

be cross-examined on the contents of his declaration, [and] the defense was left with no 

effective way to dispute the legitimacy of the damages claimed.” “This is all the more 

important,” he says, “when you consider that attorney fees and costs, and auditing 

expenses, made up nearly two thirds of the restitution award ....” His complaints are 

without merit.

A. Additional Background

In the months preceding the restitution hearing, the victims’ attorney filed several 

briefs either summarizing or detailing the restitution request. The attorney first filed a 

“statement of damages” for each victim. These filings were accompanied by separate 

“truncated master exhibit list[s] ....” Those filings were supplemented with “master 

9 This waiver rule only applies where the trial court complies with section 1192.5. 

That section requires the trial court to inform a defendant, prior to taking a no contest or 

guilty plea, that its approval of a negotiated plea is not mandated and should it later 

withdraw approval the defendant has the right to withdraw the plea. The waiver rule was 

complied with in this case because the admonition was given in the change of plea form 

signed by Kapral. (See People v. Silva (2016) 247 Cal.App.4th 578, 590, fn. 14 

[“The section 1192.5 admonitions can be oral or they can be provided in a written plea 

form provided by the court in which defendant acknowledges his receipt and 

understanding of the admonitions.”].)

10 In Kapral’s “final” brief, he argued restitution beyond the damages calculated 

by the local police department were “unanticipated ....” Although not explicit, attorney 

fees comprised the majority of the unanticipated amount.
9.

exhibit list[s] ....” The “master” lists included separate declarations—one for each 

victim—by the attorney in support of damages and total nearly 500 combined pages of 

exhibits. 

The restitution hearing itself lasted eight court days. Eight witnesses, including 

Kapral, testified during the hearing. The victims’ attorney did not testify.11 Oral 

argument was heard several weeks later. At the conclusion of argument, the court stated 

it did not “find the [attorney fees] numbers startling at all” but desired “more 

specification as to just what was done generally.” 

The victims’ attorney subsequently filed additional declarations related to attorney 

fees. These declarations included detailed legal bills totaling more than 250 pages. 

Kapral filed a separate “reply and objection” to each declaration. In his replies he argued 

only a small portion of the attorney fees were related to the criminal case.

The court issued a written ruling on restitution. It found largely in favor of the 

victims and ordered restitution in the amounts claimed, minus a relatively small portion it 

concluded Kapral had disproved. 

B. Analysis

“A trial court’s determination of the amount of restitution is reversible only if the 

appellant demonstrates a clear abuse of discretion. [Citation.] No abuse of discretion is 

shown simply because the order does not reflect the exact amount of the loss, nor must 

the order reflect the amount of damages recoverable in a civil action. [Citation.] In 

determining the amount of restitution, all that is required is that the trial court ‘use a 

rational method that could reasonably be said to make the victim whole, and may not 

make an order which is arbitrary or capricious.’ [Citation.] The order must be affirmed 

11 The victims’ attorney claimed attorney-client privilege but the court did not 

explicitly rule on the asserted privilege. Instead, the court exercised its discretion and 

permitted the attorney not to testify. 
10.

if there is a factual and rational basis for the amount.” (People v. Akins (2005) 

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

A “defendant has the right to a hearing before a judge to dispute the determination 

of the amount of restitution.” (§ 1202.4, subd. (f)(1); People v. Holmberg (2011) 

195 Cal.App.4th 1310, 1319.) “ ‘The burden is on the party seeking restitution to provide 

an adequate factual basis for the claim.’ [Citation.] ‘The standard of proof at a 

restitution hearing is preponderance of the evidence, not reasonable doubt.’ ” (People v. 

Jessee (2013) 222 Cal.App.4th 501, 506-507.) After making a prima facie showing of 

loss, “ ‘the burden shifts to the defendant to demonstrate that the amount of the loss is 

other than that claimed by the victim.’ ” (Id. at p. 507.)

“A ‘ “hearing to establish the amount of restitution does not require the formalities 

of other phases of a criminal prosecution.” ’ [Citation.] ‘Section 1202.4 does not, by its 

terms, require any particular kind of proof.’ ” (People v. Kelly (2020) 59 Cal.App.5th 

1172, __, petn. for review pending, petn. filed Feb. 25, 2021 (Kelly).) “[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. [Citations.] A victim’s loss 

statement submitted to probation may be sufficient to support a prima facie showing of 

loss.” (Ibid.) “An under oath statement from a person qualified to state facts about the 

economic loss the business experienced may also be sufficient for a prima facie showing 

of loss.” (Ibid.)

Restitution may be “based on the amount of loss claimed by the victim or victims 

or any other showing to the court.” (§ 1202.4, subd. (f).) It is properly awarded even 

where the victim does not initiate the request. (People v. Selivanov (2016) 5 Cal.App.5th 

726, 784-785 (Selivanov).)

“ ‘The scope of a criminal defendant’s due process rights at a hearing to determine 

the amount of restitution is very limited ....” (Selivanov, supra, 5 Cal.App.5th at p. 783.) 

A defendant is entitled to notice of the amount of loss claimed and an opportunity to 
11.

contest the claim. (Ibid.) A “defendant does not have a state or a federal constitutional 

right to cross-examine” witnesses at a restitution hearing. (People v. Cain (2000) 

82 Cal.App.4th 81, 87 (Cain).) There is no requirement the victim testify. (People v. 

Lehman (2016) 247 Cal.App.4th 795, 803.) “A trial court violates [due process] if the 

hearing procedures are fundamentally unfair.” (Selivanov, supra, at p. 783.)

The restitution proceedings here were fair and adequately proved loss. The award 

of attorney fees was based on declarations with detailed records. Even if it were not, it 

would still be proper because “ ‘an award of attorney fees may be based on counsel’s 

declarations, without production of detailed time records.’ [Citation.] Billing 

documentation is not required.” (Kelly, supra, 59 Cal.App.5th at p. __.)

Because the detailed bills ultimately were disclosed, the inability to cross-examine 

the victims’ attorney was largely nullified. These disclosures were crucial because “[n]ot 

all the information contained in billing invoices is ‘categorically privileged.’ ” (Kelly, 

supra, 59 Cal.App.5th at p. __.)

In any event, “[w]here a billing is relevant for a court proceeding, counsel may 

‘separate those portions of a record subject to disclosure from privileged portions.’ ” 

(Kelly, supra, 59 Cal.App.5th at p. __.) Although Kapral had no right to cross-examine 

the victims’ attorney (Cain, supra, 82 Cal.App.4th at p. 87), that does not mean he had no 

right to contest the alleged fees.

There was a fair opportunity to contest the attorney fees in this case. “For 

example, [Kapral] could have called an expert to show” the fees were unreasonable or 

that they were not “related only to the crime.” (Cain, supra, 82 Cal.App.4th at p. 87.) 

Indeed, he attempted to show the fees were not related to the crime. The court, also 

cognizant of the reasonableness issue, opined the fees were not “startling at all.” 

Lastly, the fact the victims did not testify at the hearing is not concerning for many 

reasons. The victims here were business entities. There is no requirement a victim 

testify at a restitution hearing. Victim restitution is constitutionally mandated and is 
12.

properly awarded on “any ... showing to the court.” (§ 1202.4, subd. (f), emphasis 

added.) 

In sum, we find Kapral was not denied a full and fair hearing on restitution and the 

restitution claims were substantiated. (Cf. People v. Harvest (2000) 84 Cal.App.4th 641, 

653 [restitution reward based on probation report without supporting evidence is 

improper].) The court held a lengthy hearing, considered numerous filings, reviewed 

hundreds of pages of exhibits, and issued a written ruling detailing its conclusions. The

trial court’s rational calculation of the restitution award is entitled to deference. Kapral’s 

claim the award was unfounded is rejected.

III. Court Did Not Abuse Discretion By Excluding Comparative Fault Principles

Finally, Kapral argues the court erred by failing to consider comparative fault. 

Specifically, he argues the court conflated amorphous criminal conduct with actual 

convictions. We disagree.

A. Additional Background

Kapral sought to have the court apply comparative fault principles to reduce the 

restitution reward. After the parties briefed the issues, the court found, as part of the 

written ruling on the hearing’s scope, “[c]omparative fault principles cannot apply if the 

defendant’s conduct was intentional.” 

B. Analysis

“[A] trial court has sufficient discretion to appropriately limit the evidence 

admitted at a victim restitution hearing to avoid an unduly prolonged and involved

hearing.” (People v. Millard (2009) 175 Cal.App.4th 7, 42.) “In considering whether to 

reduce the award on comparative fault principles, the trial court could look beyond the 

level of culpability minimally necessary for the convictions to assess the quality of 

defendant’s actions under all the circumstances set forth in the record.” (People v. 

Brunette (2011) 194 Cal.App.4th 268, 284.) “[C]omparative fault principles do not apply 
13.

in cases involving intentional” acts. (People v. Petronella (2013) 218 Cal.App.4th 945, 

971.) 

The trial court appropriately determined comparative negligence principles do not 

apply to intentional crimes. The dismissed counts in this case all involved intentional 

theft. The overall conduct in issue was concrete and clear. 

The court’s decision to disallow comparative fault was based on its conclusions a 

bench trial was unauthorized and Kapral had entered into a standard Harvey waiver.12 

That decision was reasoned, and not arbitrary or capricious. In light of the Harvey waiver 

to specific crimes, and the wide latitude afforded trial courts to manage restitution 

hearings, we discern no abuse of discretion in this case.13

DISPOSITION

The judgment is affirmed.

SNAUFFER, J.

WE CONCUR:

DETJEN, Acting P.J.

DE SANTOS, J.

12 As described above, if Kapral inadvertently agreed to or signed the Harvey 

waiver, or disagreed with the court’s interpretation, his remedy was to withdraw his plea.

13 We reiterate Kapral nonetheless testified in his own defense and the court found 

he “was not a credible witness and his ‘offset contention’ was legally and factually 

untenable.”