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Court of Appeal:
Restitution Award as Condition of Probation to Non-Victim Landlord Found Permissible
By a MetNews Staff Writer
The Third District Court of Appeal held yesterday that a defendant convicted of embezzling money from her elderly father may be subjected to probation conditions that require her to pay restitution to a property management firm for past-due rent where the direct victim died intestate during the pendency of the case and the company was prevented from pursuing eviction due to a COVID-19 moratorium.
The court found that the fact that the written order of probation anticipated paying restitution to the victim was not binding where the judge orally advised the defendant that there would be a restitution order but made no mention of any particular recipient.
Presiding Justice Laurie M. Earl wrote the unpublished opinion affirming the restitution judgment by Sacramento Superior Court Judge Matthew Gary. Justices Elena J. Duarte and Peter A. Krause joined in the opinion.
Elder Abuse
Appealing the award was Susan Spaulding, who in January 2023 pled no contest to one count of embezzling from an elder in violation of Penal Code §368. She was ordered to serve a 180-day sentence on a work project, serve three years of informal probation, and pay restitution.
During a welfare check on her father, Spaulding admitted to a police officer that she was spending approximately $2,500 of her father’s $3,000 in monthly income on herself, including purchasing clothing and gambling at a casino, rather than paying her father’s expenses.
Specifically, Spaulding’s father owed $21,010 in unpaid rent to Pacifica SD Management Company. The company unsuccessfully attempted to recover the rent through phone calls and posted notices but—due to the statewide moratorium on evictions enacted in 2020 due to the COVID-19 pandemic—was prevented from starting proceedings to remove Spaulding’s father from the home.
At the restitution hearing, Spaulding objected to the prosecutor’s suggestion that the award should be made directly to Pacifica, arguing instead that the money should go to her father’s estate as he was the direct victim.
Gary awarded restitution to Pacifica in full based on the “broad discretion” of the court, having determined that Pacifica would not otherwise have a “good remedy” to collect the past-due rent.
Anderson Case
Spaulding argues that Gary erred in ordering restitution to Pacifica as it was not a “direct victim” as defined in Penal Code §1202.4(k)(2). Earl rejected this argument, finding that the 2010 California Supreme Court case of People v. Anderson established that a restitution award imposed as a condition of probation is governed by §1203.1, which governs probationary terms, rather than §1202.4, which deals with restitution orders.
In the Anderson case, a defendant was convicted of leaving the scene of an accident resulting in death and, as a condition of probation, was ordered to pay restitution for the victim’s final hospital expenses.
Justice Carol Corrigan wrote opinion and noted that, unlike §1202.4, the language in §1203.1 does not define who is to be the recipient of the restitution award. Corrigan declined to find that the definitions found in §1202.4 are incorporated into §1203.1 and opined that “[u]nder the particular and narrow circumstances of this case, the trial court did not abuse its discretion under section 1203.1 by ordering that restitution be paid directly to the hospital.”
Reasonable Conditions
Sec. 1203.1(a)(3) provides that “[t]he court shall provide for restitution in proper cases” and Earl pointed out that reasonable probation conditions under the section must serve a purpose specified in the statute, including making amends, fostering rehabilitation and protecting public safety.
Finding the restitution award in the present case to be serving such purposes, she wrote:
“Spaulding’s criminal conduct caused an injury to Pacifica because it did not receive rent payments from Spaulding, on behalf of the victim, while the victim lived in his residence for approximately 10 months. The death of the victim, before Spaulding entered into her plea agreement, resulted in the trial court fashioning the restitution order to ensure justice could be done with respect to the unpaid rent amounts due to Pacifica.”
The jurist continued:
“Having found there was no probate opened, the victim died intestate, the estate only consisted of personal property, and Spaulding and her brother were the sole heirs and potential executors, the trial court reasonably concluded a probate likely would not be opened. The court also found that if restitution was made payable to the victim’s estate, rather than directly to Pacific, it could essentially leave restitution unpaid because the estate had no assets, and it would require Spaulding or her brother to open a probate for the sole purpose of paying restitution. Payment of restitution directly to Pacifica meets the purpose of section 1203.1 ‘that justice may be done.’ ”
Problematic Heir
Earl reasoned that an order requiring the restitution to be paid to the estate was particularly problematic in this case, where Spaulding was an heir. She remarked:
“Paying restitution directly to Pacifica also avoided a scenario where Spaulding could pay restitution to herself as the executor of the victim’s estate, effectively leaving Pacifica without a remedy to recover the lost rent amounts….Direct payment of restitution to Pacifica also satisfied the reformation and rehabilitation purposes of section 1203.1 by holding Spaulding accountable for failing to pay rent as her father’s caregiver.”
The justice also noted that “[p]aying Pacifica directly relieved Spaulding and her brother from the burden of opening a probate for the sole purpose of paying restitution.”
Written Order
Spaulding contends that because the written order of probation said that restitution was to be paid to the named victim, the court materially altered the terms of the plea agreement by ordering restitution to be paid to Pacifica.
Unpersuaded, Earl wrote:
“What Spaulding omits is that the trial court’s oral pronouncement of the restitution order did not name a particular person or entity. Rather, when accepting Spaulding’s plea, the trial court orally advised Spaulding that there would be a restitution order, but did not identify a particular recipient. This is significant to the extent that where there is a discrepancy between the oral pronouncement of judgment and the minute order, the oral pronouncement controls.”
She acknowledged that plea agreements are enforceable contracts, but said:
“Here, who would receive restitution was not a term of the plea agreement, let alone a material term…. The only material term of the plea agreement related to restitution contemplated Spaulding would pay restitution in an amount that would be determined at a later hearing. That term of the plea agreement was clear and unambiguous.”
The case is People v. Spaulding, C098200.
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