People v. Burke CA1/5 ( 2020 )

Filed 8/28/20 P. v. Burke CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A157838
v.
ANTHONY EDWARD BURKE, (Sonoma County
Defendant and Appellant. Super. Ct. No. SCR-696156)
Anthony Edward Burke challenges the trial court’s victim restitution
award imposed after he pled no contest to two charges, including felony elder
abuse through fraud (Pen. Code, § 368, subd. (d)).1 Burke contends a portion
of the restitution award “was in excess of the victim’s costs for
reimbursement and repair,” constituting an impermissible “windfall.”
We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Edith R. hired Burke to repair the foundation at her Santa Rosa home.
Burke told Edith he was a licensed and insured contractor with two
engineering degrees and “ ‘a crew of sixteen.’ ” Edith and Burke signed a
1 Undesignated statutory references are to the Penal Code.
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contract for the construction work, which called for a flat fee of $14,000 for
the job. Edith paid Burke a deposit of $9,000. The work was estimated to be
completed by the end of May 2016. Burke was not a licensed contractor. He
did not obtain permits, and he stopped work on the property in June 2016.
Edith reported Burke to the district attorney.
Burke plead no contest to felony elder abuse through fraud (§ 368,
subd. (d)) and misdemeanor contracting without a license (Bus. & Prof. Code
§ 7028, subd. (a)). He admitted having suffered a prison prior (§ 667.5, subd.
(b)). Pursuant to the plea agreement, the court imposed an aggregate four-
year sentence.
A.
At a conditional examination, Edith described the damage Burke
caused to her property. Among other things, Burke dug an unnecessary
trench in the yard, left a wall open, and installed the wrong type of pipes.
When Burke stopped working, Edith’s property was in “shambles, unfinished,
and everything was . . . done wrong,” “the cement had to be jackhammered
out and the PVC pipes had . . . to be buried and everything had to be redone
[¶] . . . [¶] from scratch.”
Edith hired two workers, including her son, Michael, to fix Burke’s
work and repair the damage Burke caused. Michael cleaned up the area
under the house; he also secured one of the walls, closed up a hole in that
wall, and painted it. Michael also removed and replaced pipes Burke had
installed incorrectly. Edith paid Michael $7,223 for the work based on an
hourly rate of $28; she documented the time he spent working. Edith paid
$7,122 for materials.
Edith paid another worker $4,800 to finish and repair the cement work.
This expense was necessary because Burke had poured concrete against the
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bottom of a wall, shifting the home’s support beams. When Burke stopped
working on the property, there was cement “ ‘splattered’ ” everywhere, and
the seams between the old concrete and the new concrete Burke had poured
were “ ‘atrocious.’ ”
B.
The prosecutor requested victim restitution of $26,023, comprised of
$9,000 Edith paid Burke, $7,223 for Michael’s labor, $4,800 for cement work,
and $5,000 in materials. The prosecutor argued Edith incurred these
expenses to “obtain materials and labor to correct the work and repair the
damage” Burke caused. To support the restitution request, the prosecutor
relied on Edith’s testimony at the conditional examination, the probation
report, and documentary evidence of Edith’s expenses.
Defense counsel objected to the amounts for cement and materials,
arguing a restitution award including these amounts were “outside the scope
of the construction contract.” In response, the prosecutor noted Edith
testified “the money that was expended” was to “repair” and “redo” the
improper cement work and “to repair all of the damage she incurred as a
result of [Burke’s] defective work.” As the prosecutor explained, Edith
testified Burke left “walls open, he did a lot of things under the house, took
apart things that had to be replaced.” According to the prosecutor, the
amount requested—$26,023—was necessary to make Edith “whole.”
The court determined the prosecutor met its burden of proof and that
Burke did not offer evidence contradicting the amount of the claimed loss. It
ordered Burke to pay $26,023 in victim restitution. The court noted Burke
had paid Edith $9,000, and that $17,023 was “still owing.”
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DISCUSSION
“[W]hen a defendant is convicted of a crime involving a victim who
‘has suffered economic loss as a result of defendant’s conduct’ [citation], the
court must require the defendant to pay full restitution directly to the
victim . . . ‘unless it finds compelling and extraordinary reasons for not doing
so, and states those reasons on the record.’ ” (People v. Giordano (2007)
42 Cal.4th 644, 651–652.) Restitution must “be ‘based on the amount of loss
claimed by the victim . . . or any other showing to the court.’ ” (Id. at p. 667,
quoting § 1202.4, subd. (f).) After the prosecution makes “ ‘a prima facie
showing of [the victim’s] 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. Millard (2009) 175 Cal.App.4th 7, 30.) “[W]e review the
trial court’s restitution order for abuse of discretion.” (Giordano, at p. 663.)
“No abuse of that discretion occurs as long as the determination of economic
loss is reasonable, producing a nonarbitrary result.” (Id. at p. 665.)
There was no abuse of discretion. The court used a “ ‘a rational
method’ ” to calculate an amount of restitution to make Edith “ ‘reasonably
whole.’ ” (People v. Petronella (2013) 218 Cal.App.4th 945, 973.) The record
amply supports the amount of the restitution award. Edith testified she paid
Burke $9,000. She also testified she paid Michael $7,223 to clean up the area
under the house, to patch and paint a wall, and to remove and replace pipes;
she paid another worker $4,800 for the cement work. Edith also testified she
spent at least $5,000 on materials. Edith offered documentary evidence of
amounts she spent on labor and materials. The ceiling for the restitution
award is not, as Burke seems to suggest, the $9,000 Edith paid him at the
outset of the project. Finally—and contrary to Burke’s suggestion—the
restitution award had a “ ‘factual nexus to the damage caused’ ” by Burke’s
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criminal acts because Edith testified she was forced to pay for labor and
materials to fix the damage Burke caused. (People v. Hurtado (2019)
35 Cal.App.5th 871, 879.)
DISPOSITION
The restitution order is affirmed.
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_________________________
Jones, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Needham, J.
A157838
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