People v. Gaspar CA2/4 ( 2023 )

Filed 3/6/23 P. v. Gaspar CA2/4
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B316236
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA460136
v.
REBECCA GASPAR,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Curtis B. Rappe, Judge. Affirmed in part,
remanded with instructions.
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Rebecca Gaspar
of one count of conducting an unlawful insurance transaction
without a license. On appeal, she argues: (1) the trial court
prejudicially erred by failing to adequately instruct the jury on
the elements of the offense; (2) the trial court prejudicially erred
by not giving
a unanimity instruction; (3) retrial is barred on remand
because her conviction is unsupported by substantial evidence;
(4) the trial court improperly ordered restitution for alleged
crimes on which the jury acquitted her; and (5) her upper term
must be vacated and her case remanded for resentencing in light
of Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567) and
Assembly Bill No. 124 (2021-2022 Reg. Sess.) (AB 124). We agree
with Gaspar’s fourth and fifth contentions, order her restitution
and sentence vacated, and remand the matter for resentencing.
On remand, the court may hold a new restitution hearing. In all
other respects, the judgment is affirmed.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an 80-count
information, charging Gasper with 3 counts of workers’
compensation fraud (Ins. Code, § 11760, subd. (a), counts 1-3), 69
counts of forgery (Pen. Code,1 § 470, subd. (c), counts 4-19, 22-23,
25-28, 30-31, 33-37, 39-62, 64-79), 7 counts of grand theft (§ 487,
subd. (a), counts 20-21, 24, 29, 32, 38, 63), and 1 count of
engaging in an unlawful insurance business transaction (Ins.
1 All undesignated statutory references are to the Penal
Code.
2
Code, § 700, subd. (b), count 80).2 With respect to all counts, the
information alleged: (1) the pattern of related felony conduct
involved the taking and loss of more than $500,000 (§ 186.11,
subd. (a)(2)); and (2) Gaspar took, damaged, and destroyed
property of a value exceeding $3.2 million. (§ 12022.6, subd.
(a)(4).)3
The first jury to hear the case could not reach verdicts, and
the trial court declared a mistrial. A second jury convicted
Gaspar of count 80 (conducting an unlawful insurance business
transaction), but acquitted her of the remaining counts. The jury
found all the other allegations not true. The trial court sentenced
Gaspar to an upper term of three years in county jail, suspended
execution of sentence, gave her credit for time served, and placed
her on mandatory supervision for the remaining 103 weeks of her
term. One of the terms of mandatory supervision was that
Gaspar pay restitution as ordered by the court. The court ordered
Gaspar to pay a restitution total of $2,825,114.
Gaspar timely appealed.
FACTUAL BACKGROUND
Gaspar owned and managed a Professional Employer
Organization under the name Prime Staff and later under the
name Montclair Services. Her company offered services to other
businesses, including managing payroll, paying taxes, and
obtaining workers’ compensation insurance. Several businesses
contracted with Gaspar’s company for these services, including
2 Counts 35 and 57 were later dropped.
3 The information also alleged that, with respect to all
counts, Gaspar stole an amount exceeding $100,000, restricting
the judge’s ability to grant probation. (§ 1203.045, subd. (a).)
3
Carlos Gutierrez’s staffing business, Saundra Ward’s
transportation business, Marguerite Scomazzon’s decorative
business, Sergio Noches’s staffing business, Mary Hilvers’s family
horse ranch, Alvaro G. Ayala’s staffing business, and Beatriz
Campos’s staffing business.
Starting in 2015, Gaspar used insurance broker Kendra
Aleman to obtain workers’ compensation coverage on behalf of
her clients. Upon request, Prime Staff/Montclair Services
forwarded certificates of insurance to its clients, purporting to
evidence this coverage. As both parties agree, however, the
insurance purportedly obtained by the broker, Aleman, and
evidenced through the certificates, turned out to be invalid.
Gaspar testified that, during the period of purported
coverage, she followed Aleman’s instructions and procedures in
handling worker injury claims. Gaspar would collect a $5,000
deductible from her clients for each injured worker and forward
related paperwork to Aleman. Aleman’s communications with
both Gaspar and her clients consistently indicated the claims
were being handled and that the workers were covered when, in
fact, they were not.
Gaspar did not hold any professional license authorizing
her to engage in workers’ compensation insurance transactions.
Because she was unlicensed, she could not lawfully administer
claims. Nonetheless, in 2016, Gaspar’s employees sent e-mails
authorizing surgery and approving temporary disability
payments for one injured worker, Linda Wiseheart. On February
2, 2016, an employee from Gaspar’s company, Maria Olivas,
wrote an e-mail authorizing Wiseheart’s surgery. Then, on April
26, 2016, Caezar Evangelista, another employee of Gaspar’s
company, who was also Gaspar’s son, sent an e-mail to Aleman
4
stating Prime Staff had decided to place Wiseheart on temporary
disability. Gaspar was cc’d on the e-mail, as was Maria Olivas.4
Wiseheart had the surgery, but her medical bills were not paid,
nor did she receive workers’ compensation. Although a
representative from Prime Staff repeatedly insisted the situation
would be resolved, it never was.
A forensic analyst called as a defense witness testified
Gaspar paid Aleman’s company, KMK Commercial Lines
Insurance, a total of $2,308,548 for workers’ compensation
premiums on behalf of her clients between June 10, 2015 and
July 27, 2017, and that Aleman, in turn, sent Gaspar fake bank
records, purporting to show she had used that money to purchase
workers’ compensation insurance. Gaspar testified that she was
unaware her clients did not have insurance coverage because
Aleman had indicated the policies existed and provided
documentation to that effect.5
DISCUSSION
I. The trial court properly instructed the jury on the
elements of the offense
Gaspar first argues the trial court prejudicially erred by
failing to instruct the jury properly on the mental state elements
required to secure a conviction under Insurance Code section 700.
Specifically, she argues the court failed to instruct that the
prosecution was required to prove she knew of the licensing
requirement and willfully violated it. The Attorney General
4 As discussed in greater detail below, these authorizations
served as the basis for Gaspar’s conviction on count 80.
5 Aleman was prosecuted separately from Gaspar.
5
counters that the statute contains no such requirements. For the
reasons discussed in greater detail below, we agree with the
Attorney General.
A. Background
The court instructed the jury as follows using CALCRIM
No. 252:
The crime[s] charged in this case require proof of the
union, or joint operation, of act and wrongful intent.
The following crime requires general criminal intent:
Unlawful Business Transaction. For you to find a person
guilty of this crime, that person must not only commit the
prohibited act or fail to do the required act, but must do so
with wrongful intent. A person acts with wrongful intent
when he or she intentionally does a prohibited act or fails
to do a required act; however, it is not required that he or
she intend to break the law. The act required is explained
in the instruction for that crime.6
On count 80, the court instructed the jury as follows:
The defendant is charged in Count 80 with unlawful
insurance business transaction in violation of Insurance
Code section 700(b).
6 Though not relevant to the issue presented, the instruction
further stated that the crimes of workers’ compensation fraud,
forgery, and grand theft required specific intent.
6
To prove the defendant is guilty of this crime, the People
must prove:
1. The defendant willfully transacted workers’
compensation insurance business;
AND
2. When the defendant did so, she had not first procured a
certificate of authority from the Insurance Commissioner of
the State of California admitting her to transact workers’
compensation insurance.
B. Analysis
Trial courts have “a sua sponte duty to instruct the jury on
the essential elements of the charged offense.” (People v. Merritt
(2017) 2 Cal.5th 819, 824.) The failure to do so violates the
defendant’s right under the United States and California
Constitutions to have a jury determine whether she is guilty of
each element beyond a reasonable doubt. (Ibid.) We review de
novo whether the jury instructions correctly stated the law.
(People v. Serrano (2022) 77 Cal.App.5th 902, 909.)
Subdivision (b) of Insurance Code section 700 states: “The
unlawful transaction of insurance business in this state in willful
violation of the requirement for a certificate of authority is a
public offense punishable by imprisonment . . . .”
“The word ‘willfully,’ when applied to the intent with which
an act is done or omitted, implies simply a purpose or willingness
to commit the act, or make the omission referred to. It does not
require any intent to violate law, or to injure another, or to
acquire any advantage.” (§ 7, subd. (1).) “‘[T]he terms “willful” or
7
“willfully,” when applied in a penal statute, require only that the
illegal act or omission occur “intentionally,” without regard to
motive or ignorance of the act’s prohibited character.’” (People v.
Atkins (2001) 25 Cal.4th 76, 85.) Similarly, citizens are required
to apprise themselves of the law and are presumed to know the
law. (People v. Hagedorn (2005) 127 Cal.App.4th 734, 748.)
“[I]gnorance of the law is no excuse” for violating it. (Ibid.)
Applying these principles to the language of Insurance
Code section 700, we reject Gaspar’s assertion that the
prosecution was required to prove she knew of the licensing
requirement and intentionally violated it. Because the statute
does not require proof that a defendant knew of the licensing
requirement in order to obtain a conviction, the trial court’s
instructions defining the elements of the offense were correct.7 It
bears noting that this interpretation of the statute is in harmony
with its intended purpose of protecting consumers from
individuals who unlawfully engage in insurance transactions
with no license to do so.8
7 As noted above, those instructions explained to the jury
that the prosecution must prove Gaspar willfully transacted
workers’ compensation insurance without first procuring a
certificate to do so.
8 We are unpersuaded by Gaspar’s contention that a
rejection of her reading of the statute would improperly render
her offense a strict liability crime. We instead conclude that the
statute, which asks whether the defendant intended to do the
proscribed act, establishes a general intent crime. (Cf. People v.
Noori (2006) 136 Cal.App.4th 964, 975.)
8
II. A unanimity instruction was not required
Gaspar next argues the trial court prejudicially erred in
failing to give a unanimity instruction. For the reasons discussed
below, we disagree.
A. Background
When discussing jury instructions with the parties, the
trial court noted it believed a unanimity instruction was needed
for count 80. For reasons not discussed on the record, the court
ultimately did not provide that instruction to the jury.
B. Relevant Law
“In a criminal case, a jury verdict must be unanimous.”
(People v. Russo (2001) 25 Cal.4th 1124, 1132.) “[T]he jury must
[also] agree unanimously the defendant is guilty of a specific
crime.” (Ibid., italics in original.) “Therefore, cases have long held
that when the evidence suggests more than one discrete crime,
either the prosecution must elect among the crimes or the court
must require the jury to agree on the same criminal act.” (Ibid.)
“‘The [unanimity] instruction is designed in part to prevent the
jury from amalgamating evidence of multiple offenses, no one of
which has been proved beyond a reasonable doubt, in order to
conclude beyond a reasonable doubt that a defendant must have
done something sufficient to convict on one count.’” (Ibid., italics
in original.) We review Gaspar’s argument that the trial court
was required to give a unanimity instruction de novo, as her
contention raises a mixed question of law and fact that is
predominately legal in nature. (People v. Sorden (2021) 65
Cal.App.5th 582, 616.)
9
C. Analysis
During closing argument, when discussing count 80, the
prosecution explained the charge applied to “evidence where the
defendant was doing things that only an insurance company has
the legal right to do; like authorizing someone to be on temporary
disability or authorizing someone for surgery.” The prosecution
went on to explain that Gaspar “never had any licenses to
transact insurance; basically, to administer insurance claims in
terms of authorizing surgeries or anything like that.” The
prosecutor further explained that Gaspar’s son and employee,
Caezar Evangelista, wrote an e-mail authorizing temporary
disability for a worker.
The prosecution thus spoke in general terms about what
type of conduct formed the basis for convicting Gaspar on count
80, and also highlighted for the jury two instances of Gaspar’s
culpable conduct – the authorization of surgery and placement of
someone on temporary disability by Prime Staff. Later, the
prosecution reiterated that count 80 involved the authorization of
surgery and placement of someone on temporary disability.
Although the prosecution did not name the individual Prime Staff
authorized surgery for and placed on temporary disability, it is
clear from the evidence presented at trial that the prosecution
was referring to Linda Wiseheart without explicitly naming her.
As Gaspar concedes in her opening brief, these two instances
were “the only two examples specified by the prosecution in
closing argument.”
Although the prosecution presented two acts to the jury
that could form the basis for count 80, no unanimity instruction
was required because Gaspar offered the same defenses to both
acts, ensuring no juror could have believed she committed one act
10
but not the other. (People v. Covarrubias (2016) 1 Cal.5th 838,
879.) Indeed, for all the acts that could fall under count 80,
Gaspar’s defenses were Aleman was at fault, she did not realize
she was unauthorized to engage in insurance decisions, or the
insurance authorizations were not done at her direction. Because
she did not offer different defenses to each act of unlawfully
transacting insurance, a unanimity instruction was not required.
(Id. at pp. 879-880.)
III. The jury’s guilty verdict is supported by
substantial evidence
Gaspar next argues that, in the event this court concludes
the trial court committed prejudicial instructional error, we
should also conclude retrial is barred based on insufficient
evidence in the record to support a guilty verdict on count 80. It
does not appear Gaspar has raised her substantial evidence
challenge on its own footing, but rather only in relation to the
issue of retrial being barred should this court find prejudicial
instructional error. Because, as discussed above, we conclude the
trial court did not commit instructional error, we may not need to
address this contention. We do so anyway, however, because any
conviction must be supported by substantial evidence.
In reviewing a judgment for sufficiency of the evidence, a
court must review the record in the light most favorable to the
judgment to determine if there is substantial evidence from
which any rational trier of fact could find each element of the
crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443
U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v.
Staten (2000) 24 Cal.4th 434, 460.) Substantial evidence is
evidence that is “‘reasonable in nature, credible, and of solid
value.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.)
11
Substantial evidence includes circumstantial evidence and
reasonable inferences based on that evidence. (In re James D.
(1981) 116 Cal.App.3d 810, 813.) In reviewing a sufficiency claim,
we “presume in support of the judgment the existence of every
fact that the trier of fact could reasonably deduce from the
evidence.” (People v. Medina (2009) 46 Cal.4th 913, 919.)
“Because we must draw all inferences in support of the judgment,
[a] defendant ‘bears an enormous burden’ when challenging the
sufficiency of the evidence.” (People v. Vasco (2005) 131
Cal.App.4th 137, 161.)
Applying these principles, we reject Gaspar’s sufficiency
challenge. As mentioned above, the prosecution introduced into
evidence an e-mail sent to Aleman from Caezar Evangelista,
Gaspar’s employee and son, stating Prime Staff had decided to
place Wiseheart on temporary disability. Gaspar was cc’d on this
e-mail. This e-mail alone was sufficient to support the jury’s
verdict. Additionally, the jury could reasonably infer Gaspar was
guilty based on her employee Maria Olivas’s e-mail authorizing
Wiseheart’s surgery. Although Gaspar testified she never directly
told employees to authorize or deny medical treatment, the jury’s
guilty verdict indicates it did not find that testimony credible. In
our capacity as a reviewing court, we accord due deference to the
jury and do not substitute our own evaluation of a witness’s
credibility for that of the fact finder. (People v. Ochoa (1993) 6
Cal.4th 1199, 1206.) For these reasons, Gaspar’s conviction is
supported by substantial evidence.
IV. Victim restitution
Gaspar next argues the restitution ordered by the trial
court was improper because it was based on charged crimes of
which she was acquitted. We agree.
12
A. Background
Carlos Gutierrez’s staffing business, Saundra Ward’s
transportation business, Marguerite Scomazzon’s decorative
business, Sergio Noches’ staffing business, Mary Hilvers’ family
horse ranch, Alvaro G. Ayala’s staffing business, and Beatriz
Campos’ staffing business all contracted with Gaspar’s company
for payroll services, tax services, and obtaining workers’
compensation insurance. The workers’ compensation certificates
were invalid.
A forensic analysis revealed Gaspar paid Aleman’s
company, KMK Commercial Lines, a total of $2,308,548 for
workers’ compensation premiums on behalf of her clients, and
that Aleman sent Gaspar fake bank records falsely indicating she
had used the money to purchase workers’ compensation
insurance.
Aleman was prosecuted separately from Gaspar. Gaspar
testified at trial that she believed she was obtaining legitimate
certificates of insurance from Aleman, and the jury evidently
believed Gaspar, acquitting her of allegations that she had forged
the certificates, knowingly perpetrated fraud, and stolen from the
named businesses. (As explained above, the jury convicted
Gaspar only of operating without an insurance license.)
At the sentencing hearing, defense counsel argued it was
unclear what the jury found Gaspar did in violation of the
licensing requirement, and at most, she should be ordered to pay
$20,000, equal to deductibles paid out by named victims.
The prosecution argued Gaspar should be ordered to pay
direct victim restitution equal to the sum of all workers’
compensation premiums paid to Gaspar and all other losses
sustained due to the businesses not having valid insurance, such
13
as medical bills, salaries, and legal fees. Citing People v. Lent
(1975) 15 Cal.3d 481 (Lent), the prosecution highlighted the
principle that an individual may be ordered to pay restitution for
a crime of which they were acquitted as a condition of probation.
The prosecution then recommended the trial court sentence
Gaspar to a term of probation. The prosecution argued the
appropriate restitution amount was $2,825,114.
Finding the victims “were particularly vulnerable,” the trial
court denied probation. The court sentenced Gaspar to an upper
term of three years in county jail, suspended execution of
sentence, awarded credit for time served, and placed her on
mandatory supervision for the remainder of her term. One of the
terms of mandatory supervision was that she pay restitution as
ordered by the court. The court ordered Gaspar to pay the full
amount requested by the prosecution – $2,825,114.9
B. Relevant Law
We review the trial court’s restitution order for abuse of
discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) “A
court abuses its discretion when it makes an arbitrary or
capricious decision by applying the wrong legal standard
[citations], or bases its decision on express or implied factual
findings that are not supported by substantial evidence[.]”
(People v. Moine (2021) 62 Cal.App.5th 440, 449 (Moine).)
9 The court filed victim restitution orders for the following
amounts: (1) $522,646 to be paid to Sergio Noches; (2) $888,000 to
Alvaro Gabriel Ayala; (3) $393,061 to Mary Hilvers; (4)
$45,934.00 to Marguerite Scomazzon; (5) $124,314.00 to Carlos
Gutierrez; (6) $74,721 to Saundra Ward; and (7) $776,438 to
Beatriz Campos. The orders indicated these values equaled the
amount Gaspar had “stolen or damaged.”
14
California’s Constitution provides that “every crime victim
has a right to be compensated by the defendant for losses
incurred as a result of the defendant’s crime.” (People v. Martinez
(2017) 2 Cal.5th 1093, 1100 (Martinez); Cal. Const., art. I, § 28,
subd. (b)(13)(A).) This principle is codified under section 1202.4,
subdivision (a)(1), as well as subdivision (f)(3), which “authorizes
trial courts to order direct victim restitution for those losses
incurred as a result of the crime of which the defendant was
convicted.” (Martinez, supra, 2 Cal.5th at p. 1101, italics added.)
“When the court sentences an adult to custody (either in prison or
jail), the court may only impose restitution for economic losses
incurred ‘as a result of’ the defendant’s criminal conduct. (Pen.
Code, § 1202.4, subd. (f).)” (In re S.O. (2018) 24 Cal.App.5th 1094,
1101.) “Put differently, restitution may be imposed in such cases
only to the extent the defendant’s criminal conduct played a
‘substantial factor’ in causing the victim’s economic loss.” (Ibid.)
This authority is distinct from the court’s broader authority to
order a defendant to pay restitution as a condition of probation.
(Id. at pp. 1101-1102.) That broader authority, arising in the
probation condition context, includes the power to order
restitution not necessarily caused by criminal conduct underlying
the conviction, including conduct resulting in an acquittal.
(People v. Carbajal (1995) 10 Cal.4th 1114, 1122 (Carbajal).) In
the probation context, courts can impose restitution as long as it
is reasonably related to either the crime or the goal of deterring
future criminality. (In re S.O., supra, at p. 1101.)
C. Analysis
Gaspar argues the trial court abused its discretion by
ordering restitution based on conduct relating to victims other
than those involved in count 80 (i.e., imposing restitution for
15
conduct relating to counts on which the jury acquitted her).
Gaspar notes the prosecution alleged she violated count 80 by
managing claims without a license, not by providing insurance
that turned out to be invalid. She contends although trial courts
are permitted in the probation condition context to award
restitution for conduct of which the defendant was acquitted
(Carbajal, supra, 10 Cal.4th at p. 1122), such an award is
prohibited here, where the trial court imposed a split sentence
and the restitution was a condition of mandatory supervision.10
We agree with Gaspar. “[V]ictim restitution ordered as part of a
sentence to county jail followed by mandatory supervision
pursuant to section 1170(h) is an order pursuant to section
1202.4 and its scope is limited ‘to those losses arising out of the
criminal activity that formed the basis of the conviction.’” (People
v. Rahbari (2014) 232 Cal.App.4th 185, 196 (Rahbari),
disapproved on another ground in People v. Bryant (2021) 11
Cal.5th 976, 986, fn. 5 (Bryant).) This holding controls.
The Attorney General disagrees, arguing the above-quoted
holding of Rahbari has been cast into doubt in light of Bryant.
Bryant recently explained: “[I]n general, the conditions of
probation and mandatory supervision are now intended to be
handled in the same way.” (Bryant, supra, 11 Cal.5th at p. 986,
fn. omitted; see id. at p. 985, fn. omitted [“conditions of
mandatory supervision resemble those of probation in that they
are ordered by a judge at the time of sentencing and involve an
10 “A split sentence is a hybrid sentence in which a trial court
suspends execution of a portion of the term and releases the
defendant into the community under the mandatory supervision
of the county probation department.” (People v. Camp (2015) 233
Cal.App.4th 461, 464, fn. 1.)
16
individualized exercise of discretion based on the particular
case.”].) Accordingly, Bryant concluded the Lent test used to
determine whether probation conditions are lawful now generally
applies to mandatory supervision conditions as well. (See Bryant,
supra, at p. 981 [mandatory supervision conditions “are to be
evaluated for reasonableness on a case-by-case basis under the
test set out in [Lent, supra, 15 Cal.3d 481 [ ].”]; Bryant, supra, at
p. 986, fn. 6 [explaining that its holding is a general rule that
may be subject to certain exceptions].) Lent articulated the
seminal test for determining whether a probation condition is
reasonable and thus lawful: “A condition of probation will not be
held invalid unless it ‘(1) has no relationship to the crime of
which the offender was convicted, (2) relates to conduct which is
not in itself criminal, and (3) requires or forbids conduct which is
not reasonably related to future criminality . . . .’” (Lent, supra, at
p. 486, fn. omitted.) Bryant’s adoption of the Lent test (in
particular, the third prong of the test) expressly contemplates
courts may generally (with some possible exceptions) impose
mandatory supervision conditions reasonably related to future
criminality. (Bryant, supra, at pp. 983, 987.) Based on Bryant, the
Attorney General contends Gaspar’s mandatory supervision
condition (i.e., paying restitution) was lawful because the trial
court could reasonably conclude imposing restitution equal to the
amount paid to Gaspar for invalid insurance would deter her
from engaging in future unlawful insurance transactions.
We are not persuaded. Although Bryant articulated the
“general” principle that “conditions of probation and mandatory
supervision are now intended to be handled the same way[,]”
(Bryant, supra, 11 Cal.5th at p. 987) it also noted: “Of course,
every general rule is subject to exceptions. For example, Rahbari,
17
supra, 232 Cal.App.4th at pages 193-194, held that victim
restitution orders for persons on mandatory supervision are
limited to losses caused by the criminal conduct for which the
defendant was convicted (§ 1202.4), not the broader provisions for
restitution governing persons on probation (§ 1203.1). We need
not consider these nuances in resolving the narrow issue here.”
(Bryant, supra, at p. 987, fn. 6.) Bryant thus expressly declined to
consider whether Rahbari’s holding was correct, and indeed
singled out the holding of Rahbari as one potential example of a
statutory exception to the general principle that probation and
mandatory supervision conditions should be treated as analogous
to one another.11 We see no reason to diverge from Rahbari,
which engages in a thorough and persuasive statutory analysis of
the issue now presented. (Rahbari, supra, 232 Cal.App.4th at pp.
190-196.) Indeed, reaching a holding contrary to Rahbari would
go against “the rationale behind the rule authorizing broader
victim restitution for probation sentences[ ]” – namely that a
defendant has the right to refuse probation if he feels the terms
are too harsh, whereas a defendant sentenced to imprisonment
has no such right. (Id. at p. 194.)
In sum, because the trial court denied probation, it was not
permitted to order Gaspar to pay restitution based on alleged
11 Bryant, incidentally, dealt with a mandatory supervision
electronics search condition. (Bryant, supra, 11 Cal.5th at p. 992.)
The Attorney General in Bryant argued “the status of mandatory
supervision justifies an electronics search clause for all those so
released[,]” rendering Lent review inappropriate. (Id. at p. 987.)
The Supreme Court disagreed, concluding the Lent case-by-case
approach applies to mandatory supervision conditions in general,
while noting exceptions to that general rule such as the one
articulated in Rahbari might exist.
18
crimes of which she was acquitted. The jury convicted Gaspar
only of one count of conducting an unlawful insurance transaction
without a license. It did not convict her of the other 79 charged
offenses, nor did it convict her of providing insurance that turned
out to be invalid.12 In other words, it does not appear the jury
concluded Gaspar was criminally liable for the entire amount of
the premiums paid to her or the entire losses of all alleged
victims. The trial court therefore abused its discretion by
applying the wrong legal standard in ordering restitution for
conduct other than the crime of which Gaspar was convicted.
(Rahbari, supra, 232 Cal.App.4th at p. 196 [mandatory
supervision restitution is limited to losses arising from criminal
activity that formed basis of conviction]; Moine, supra, 62
Cal.App.5th at p. 449 [application of incorrect legal standard is
abuse of discretion].) The trial court is directed to vacate the
victim restitution orders.
V. The case is remanded in light of SB 567 and AB 124
As mentioned above, the trial court imposed the upper
term, suspended. In selecting the upper term, the court noted the
manner in which the crime was carried out indicated planning,
sophistication, and professionalism; the crime involved a large
monetary loss to the victims; and the defendant took advantage
of the trust and confidence of the victims to commit the crime.
The court concluded the upper term was justified because the
above-noted aggravating factors substantially outweighed the
mitigating factor (that Gaspar had no prior criminal record).
12 As noted above, the jury acquitted Gaspar on all counts of
fraud, forgery, and grand theft.
19
Effective January 1, 2022, “Senate Bill 567 amended
section 1170, subdivision (b) to specify that, when a sentencing
court chooses a term from a statutory triad, the chosen term shall
not exceed the middle term, unless the facts supporting the
aggravating circumstances are (1) established by the defendant’s
stipulation to them, (2) proven to a jury (or to a court, if jury is
waived) beyond a reasonable doubt, or (3) based on prior
convictions evidenced by a certified record of conviction. (Stats.
2021, ch. 731, §§ 1.3, 3(c), adding Pen. Code, § 1170, subd. (b)(1)-
(3), by amendment.)” (People v. Jones (2022) 79 Cal.App.5th 37,
44.) In light of this new law, Gaspar asks that her case be
remanded so the trial court can reconsider its decision to impose
the upper term on her conviction.
Gaspar also asks that her case be remanded in light of AB
124, which also became effective January 1, 2022. AB 124 sets
the low term as the presumptive term when any of the following
are a “contributing factor” to the offense: the person has
experienced psychological, physical, or childhood trauma; the
person is or was a youth at the time of the commission of the
offense; or prior to the offense, or at the time of the commission of
the offense, the person is or was a victim of intimate partner
violence or human trafficking. (See Stats. 2021, ch. 695, § 5.3,
adding § 1170, subd. (b)(6).) Where the presumption applies, the
court may not impose a higher sentence unless it finds that
“aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be
contrary to the interests of justice.” (§ 1170, subd. (b)(6).)
The Attorney General agrees remand is appropriate
because SB 567 and AB 124 apply retroactively to Gaspar’s
nonfinal case. We agree with the parties. (People v. Flores (2022)
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73 Cal.App.5th 1032, 1038-1039 [SB 567 is retroactive]; see In re
Estrada (1965) 63 Cal.2d 740, 744-745 [ameliorative laws
presumptively apply retroactively to nonfinal cases].) The
sentence is vacated. The case is remanded for the trial court to
apply SB 567 and AB 124 in the first instance to determine
Gaspar’s new sentence.13
13 Gaspar briefly argues that on remand, the trial court is
prohibited from changing her sentence to probation in order to
justify a high restitution award. In support of her contention,
Gaspar cites authority holding a new sentence on remand cannot
exceed the original sentence because a defendant may not be
penalized for pursuing a successful appeal. (People v. Burns
(1984) 158 Cal.App.3d 1178, 1184.) Because the trial court has
not yet resentenced Gaspar, we need not address this contention.
On remand, Gaspar and her trial counsel may raise the argument
as they see fit, and the trial court may consider its full range of
lawful sentencing options. If the trial court resentences Gaspar in
a manner she believes unlawfully penalizes her for pursuing a
successful appeal, she may challenge her new sentence on appeal.
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DISPOSITION
Gaspar’s sentence and restitution orders are vacated. On
remand, the trial court is directed to apply SB 567 and AB 124 in
determining Gaspar’s new sentence. The court may also hold a
new restitution hearing. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
COLLINS, Acting P.J.
SCADUTO, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
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