Filed 3/5/13 P. v. Tucker CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

THE PEOPLE,

Plaintiff and Respondent,

v.

FREDERICK TUCKER,

Defendant and Appellant.

 B240236

 (Los Angeles County

 Super. Ct. No. BA353803)

APPEAL from orders of the Superior Court of Los Angeles County,

William N. Sterling, Judge. Affirmed.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

________________________
2

This is an appeal from the trial court’s restitution orders following defendant 

Frederick Tucker’s no contest plea. His plea was the subject of an earlier appeal, case 

No. B237866, which was dismissed by this court for failure to obtain a certificate of 

probable cause. (Cal. Rules of Court, rule 8.304(b).) Defendant’s appellate counsel has 

asked this court to take judicial notice of the record in that case for purposes of 

determining the procedural history and facts underlying defendant’s conviction. We 

grant the motion and take judicial notice of the appellate record in defendant’s earlier 

appeal. (Evid. Code, § 452.)

According to the preliminary hearing transcript, defendant made various 

misrepresentations to induce consumers to refinance their homes. He collected 

application and appraisal fees, and had customers sign cancellation agreements, requiring 

them to pay a fee to his company in the event that the customer did not proceed with the 

loan. Customers cancelled loan applications when the loans were not timely processed, 

or when it was discovered that the loans’ actual terms differed from what was promised 

by defendant. Defendant and his company then sued customers to collect the cancellation 

fees. All of this was done in violation of a permanent injunction obtained by the Los 

Angeles County District Attorney’s Office on June 22, 2000, prohibiting defendant from 

engaging in this kind of conduct. 

On July 14, 2010, defendant was charged by an 17-count amended information1

with grand theft (Pen. Code, § 487, subd. (a); counts 1-3, 6-10, 18) and attempted grand 

theft (Pen. Code, §§ 664, 487, subd. (a); counts 5, 11-17). On May 24, 2011, defendant 

withdrew his not guilty plea and pled no contest with a Harvey2 waiver to three 

additional counts, which were added to the information by interlineation, for felony 

violations of Business and Professions Code section 17511.9 (counts 19-21). Defendant 

was sentenced to five years formal probation, 270 days in jail, and was ordered to make 

 

1 There is no count 4 in the amended information.

2 People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
3

victim restitution under Penal Code section 1202.4, subdivision (f).3 The remaining 

counts were dismissed. Defendant tendered $19,000 at the sentencing hearing to be 

distributed to his victims. A restitution hearing was calendared for January 18, 2012. 

The restitution hearing was held on January 20 and 27, 2012. Kimberley Erwin, 

the victim (along with her husband James Erwin) in count 11 of the amended 

information, testified that she and her husband wanted to refinance their home to lower 

their monthly payment, and to pull out $25,000 in equity. Defendant met with them at 

their home and provided the Erwins with a quote that met these goals. The Erwins paid 

defendant $169 for a credit check and at least $300 for an appraisal of their home, which 

were required to begin processing their loan. They also signed a cancellation agreement, 

agreeing to pay FiFed Credit Corporation (FiFed) $1,850 if the Erwins cancelled the loan 

application. 

The appraisal was completed by Hook and Associates, and the appraisal report 

was sent directly to FiFed. Neither Hook nor FiFed would give a copy of the report to 

the Erwins. 

The Erwins later learned that their loan was approved, but the monthly payment 

was higher than their current payment, as was the interest rate, and they would not get 

any of the $25,000 in equity. The terms of the approved loan were different from those 

represented by defendant, so the Erwins did not accept the loan. 

The Erwins were later sued by a collection agency, seeking $3,000 for the loan 

cancellation fee. They incurred $9,725.65 in attorney fees and costs defending the 

lawsuit, which was ultimately dismissed. The attorney fee statements were admitted into 

evidence over defendant’s objection. 

Finding the attorney fees and costs were reasonable, the court ordered restitution 

of $10,194.65 for the Erwins. 

 

3 Under the Harvey waiver, defendant was responsible for paying restitution on the 

dismissed counts. 
4

Isiah Smays, the victim in count 13 of the amended information, testified that he 

sought a refinance loan from defendant. His home was part of his estranged wife’s 

bankruptcy estate, and he needed money to avoid losing his home to the bankruptcy 

court. Smays paid defendant a $169 application fee and $350 for an appraisal. The loan

never was funded, notwithstanding FiFed’s representation that the loan had been 

approved. Therefore, his home was sold at auction. Smays was able to buy it back with 

money loaned to him by a friend. He paid the friend $2,000 in interest on the loan to buy 

back his home. 

Smays was later sued by a collection agency for a cancellation fee related to the 

loan from FiFed. Smays filed a counterclaim against defendant for breach of contract 

and incurred fees for service of process, as well as other costs associated with the lawsuit, 

totaling $268.50. The lawsuit was ultimately dismissed. 

The trial court ordered restitution of $787.50, but found that the $2,000 in interest 

paid to Smays’s friend was not recoverable. 

Defendant filed a timely notice of appeal, challenging the restitution orders. We 

appointed appellate counsel to represent him. Appointed counsel filed a brief pursuant to 

People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The 

brief included a declaration from counsel that she reviewed the record and sent a letter to 

defendant explaining her evaluation of the record. Counsel further declared that she 

advised defendant of his right to submit a supplemental brief. Defendant did not file a 

supplemental brief with this court. 

Trial courts have broad discretion to order victim restitution and the order will not 

be reversed if there is a “factual and rational basis for the amount of restitution.” (People 

v. Dalvito (1997) 56 Cal.App.4th 557, 562.) The court’s discretion is not unlimited; an 

order will be reversed if it is arbitrary and capricious. (People v. Keichler (2005) 129 

Cal.App.4th 1039, 1045.) In this case, the restitution orders are supported by substantial 

evidence, and the trial court did not abuse its discretion by requiring defendant to pay for 

the costs incurred as a result of his conduct.
5

We have examined the entire record, and are satisfied that appointed counsel fully 

complied with her responsibilities and that no arguable appellate issues exist. (People v. 

Kelly (2006) 40 Cal.4th 106; Wende, supra, 25 Cal.3d 436.) We therefore affirm the 

orders.

DISPOSITION

The orders are affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

WE CONCUR:

BIGELOW, P. J.

FLIER, J.