Filed 7/29/16 P. v. Bivens CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


THE PEOPLE,                                                        B265917

         Plaintiff and Appellant,                                  (Los Angeles County
                                                                   Super. Ct. No. BA413256)
         v.

SPARKLE SKY BIVENS,

         Defendant and Respondent.



         APPEAL from an order of the Superior Court of Los Angeles County. Michael E.
Pastor, Judge. Affirmed.
         Jackie Lacey, District Attorney, Phyllis C. Asayama and Cassandra Thorp, Deputy
District Attorneys, for Plaintiff and Appellant.
         Ivie, McNeill & Wyatt and Chandler A. Parker for Defendant and Respondent.




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       The People appeal from an order of the Superior Court of Los Angeles County
ordering defendant and respondent Sparkle Sky Bivens to pay the State Compensation
Insurance Fund (SCIF) $4,000 in restitution. The People argue that the trial court
improperly reduced SCIF’s requested $34,154.70 restitution and arbitrarily awarded only
$4,000. We disagree and affirm.
                                     BACKGROUND
       In May 2012, an SCIF claims adjuster became suspicious Bivens was submitting
fraudulent disability claims after Bivens failed to document attending certain required
medical appointments.1 SCIF thereafter approved an investigation by its Special
Investigative Unit (SIU) into the legitimacy of Bivens’s claims. The SIU determined it
needed to surveil Bivens, but because it has no internal surveilling resources, it hired Paul
Chance Investigations (Chance), a third party investigator, to surveil Bivens and obtain
evidence she was engaging in activities she claimed she could not perform. Chance
deployed a team of four investigators to surveil and videotape Bivens’s activities over
several days. SCIF testified that although normally investigations require only one
investigator, occasionally circumstances warrant a team of investigators. According to
SCIF, Chance recommended it surveil Bivens with a team, rather than an individual
investigator, because Bivens lived in a crowded area of Los Angeles, heavy with traffic,
and Bivens was a fast driver, conditions which would make Bivens a difficult target to
follow. Chance’s investigators eventually caught Bivens on film engaging in activities
she alleged she could not do. SCIF submitted the film to a doctor who determined
Bivens’s disability claims were unjustified. SCIF consequently terminated Bivens’s
disability payments.
       After SCIF terminated Bivens’s disability payments, Bivens’s attorney requested
SCIF reinstate her disability payments. SCIF spent at least an additional $11,000 looking

       1 SCIF is the third party administrator for workers compensation insurance for
various government entities, including the California Department of Justice. Bivens
worked at the Department of Justice when she filed her disability claims.

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into reinstating the payments, but concluded its original decision to terminate the
payments was correct. At the conclusion of the investigation, SCIF determined Bivens
had defrauded SCIF in the amount of $4,000.
       On July 10, 2013, the People filed a complaint for three counts of insurance fraud
under Penal Code section 550, subdivision (b)(1) and one count of grand theft of personal
property under Penal Code section 487, subdivision (a). Bivens and the People reached a
plea agreement whereby Bivens pleaded guilty to one count of felony insurance fraud in
exchange for the People reducing her felony to a misdemeanor if she completed 250
community service hours and repaid SCIF the $4,000 she stole. Bivens completed her
community service and paid SCIF $4,000, and the court reduced her conviction to a
misdemeanor. At the scheduled restitution hearing, SCIF argued it was entitled to
$34,154.70 in restitution, in addition to the $4,000 Bivens already paid, due to the
investigative costs it incurred determining the falsity of Bivens’s claims. After hearing
argument, the court found “extraordinary and compelling circumstances” justified
reducing SCIF’s requested restitution amount to $4,000. The People appealed.
                                        DISCUSSION
       On appeal, the People argue the court erroneously reduced SCIF’s requested
restitution and arbitrarily calculated the restitution award.
       We review a trial court’s order awarding reduced restitution for abuse of
discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) “Trial courts have broad
discretion to order victim restitution and such an order will not be reversed if there is a
‘factual and rational basis for the amount of restitution.’ ” (People v. Rubics (2006)
136 Cal.App.4th 452, 462.) Although the trial court “is not required to make an order in
keeping with the exact amount of loss, the trial court must 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.” (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) “To
facilitate appellate review of the trial court’s restitution order, the trial court must take
care to make a record of the restitution hearing, analyze the evidence presented, and make



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a clear statement of the calculation method used and how that method justifies the
amount ordered.” (People v. Giordano (2007) 42 Cal.4th 644, 664.)
       We reject Bivens’s argument the People forfeited its appeal because the prosecutor
did not specifically object at trial to the court’s improper method of calculation. The
record unambiguously demonstrates that the prosecutor objected at length to the trial
court’s reduction of SCIF’s restitution, and we will not reject the People’s appeal of the
reduced award merely because the prosecutor did not precisely identify an erroneous
calculation as the reason for objecting to the reduction. (See generally People v. Partida
(2005) 37 Cal.4th 428, 435 [an objection must “fairly inform” the court and opposing
party of the basis for the objection].)
A.     SCIF was a victim constitutionally entitled to restitution
       The California Constitution grants victims the right to restitution. Article I,
section 28, subdivision (b)(13)(B) requires that “[r]estitution 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.” Penal Code section 1202.4, subdivisions (a)(1) and
(g) extends that right to the “full” amount of “economic loss as a result of the commission
of a crime.” Insurance Code section 1871.4, subdivision (b) specifies that for insurance
fraud, restitution may include “the costs of investigation at the discretion of the court.”
       SCIF is a quasi-state entity. “Although a public agency generally may not recover
law enforcement costs under section 1202.4 (People v. Ozkan (2004) 124 Cal.App.4th
1072, 1076–1077), a victim may recover out-of-pocket expenses for assisting with the
investigation and prosecution of the victim’s case as these ‘expenses clearly constitute
“economic loss incurred as the result of the defendant’s criminal conduct.” ’ ” (People v.
Sy (2014) 223 Cal.App.4th 44, 64.) A quasi-state entity like SCIF is properly considered
a “victim” when, as here, it unknowingly honors fraudulent claims. (Pen. Code,
§ 1202.4, subd. (k)(2) [“For purposes of this section, ‘victim’ shall include all of the
following: [¶] . . . [¶] (2) A . . . governmental subdivision, agency, or instrumentality
. . . when that entity is a direct victim of a crime”]; see also People v. O’Casey (2001)
88 Cal.App.4th 967, 970–973 [awarding the Fireman’s Fund Insurance Company

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$10,000 in restitution, in part, for investigative costs associated with determining workers
compensation claims were fraudulent].)
B.     The court had the power to reduce SCIF’s requested restitution and
reasonably did so
       Although SCIF was entitled to request the restitution it did, the court also had the
power to reduce the amount if “compelling and extraordinary reasons” warranted a lesser
award and the court stated “those reasons on the record.” (Pen. Code, § 1202.4, subd.
(g); see also Ins. Code, § 1871.4, subd. (b) [the “court shall determine the amount of
restitution,” italics added].)2
       The trial court had “compelling and extraordinary reasons” for not granting
SCIF’s full restitution request because the amount was unreasonably high. SCIF incurred
$34,154.70 in investigative expenses, more than 8.5 times the $4,000 Bivens stole.
Although SCIF presented some testimony supporting that documenting the necessary
evidence to discredit Bivens required a team of investigators tailing Bivens over multiple
days, as the trial court noted, this type of expensive, extensive “counter-surveillance” is
more appropriate for the likes of the “Medellin Cartel.” In addition, SCIF testified that
“[t]here is not a limit” on investigative expenditures, and as Bivens’s trial counsel opined,
without limiting parameters, “why not” spend and then ask for “a million dollars?” We
agree. Allowing SCIF to recover economic losses it incurred from its own self-initiated
and self-directed investigations, no matter how unreasonable, would give it a perverse
incentive to expend unlimited funds investigating every claim to the highest degree.
       There is nothing in the governing statutes or case law which requires a court to
unquestioningly accept the victim’s reported losses, and the trial court may reduce the

       2 One  of the trial court’s stated reasons on the record for reducing SCIF’s award
was that it believed the investigative funds SCIF expended were taxpayer dollars. The
court was mistaken, however. SCIF is a quasi-government agency, created by the
Legislature, but funded through private premiums. SCIF therefore was expending its
own funds on the investigation, not the taxpayers’ funds. In any event, the court’s
mistaken assumption was not dispositive. The court explicitly held it was “taking into
account all the evidence” when finding extraordinary and compelling circumstances
warranted lessening the award.

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requested restitution. (People v. Atkins (2005) 128 Cal.App.4th 1376, 1381–1385.) In
such a case, a “trial court is not required to order restitution equal to the exact amount of
the loss, but it must employ a rational method that makes the victim reasonably whole.”
(People v. Garcia (2011) 194 Cal.App.4th 612, 617, italics added.) Here, the vast
discrepancy between the amount Bivens defrauded SCIF and the amount SCIF spent
investigating Bivens’s fraud was reason for the trial court to reduce SCIF’s requested
award to an amount that would make SCIF “reasonably whole.”
       The People counter that SCIF is legally obligated to investigate fraud and
expended what was necessary to uncover Bivens’s deception. It asserted that by reducing
SCIF’s restitution, the court was essentially ruling SCIF could perform “not too good of a
job” of the investigation it was required to undertake. We disagree. To start, SCIF did
not prove it expended only what was necessary to uncover the fraud. For example, SCIF
spent at least $11,000 investigating Bivens’s case after it determined Bivens was no
longer entitled to payments, stopped making payments, and turned the matter over to law
enforcement. SCIF makes no compelling argument this amount was “necessary” to
uncover the fraud or to more significantly substantiate it. As a quasi-state agency, SCIF
has a duty not to create waste, and further investigating a case it already determined to be
fraud and had turned over to law enforcement is wasteful. Additionally, any directive
SCIF has to investigate fraud does not entitle it to spend any amount imaginable and then
expect that exact figure in restitution. While we agree SCIF must be made reasonably
whole from the losses it incurred investigating Bivens’s fraud, we do not agree that
reducing an extraordinary request for restitution prevents SCIF from properly performing
its investigative function. Finally, SCIF does not appear to have taken care in its
calculations. At trial, SCIF admitted on cross-examination that, due to a calculation
error, its submitted payment schedule indicated that it had expended $27,862 even though




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SCIF had actually incurred $34,154.70. As a general matter, such carelessness does not
give us confidence SCIF was prudent in accurately representing its losses.3
       The trial court did not abuse its discretion by reducing SCIF’s award to an amount
more commensurate with the cost of investigating a $4,000 fraud claim.
                                      DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED.


                                                   LUI, J.


We concur:


       CHANEY, Acting P. J.


       JOHNSON, J.




       3 In addition, the People represented at one point in its appellate briefing that the
restitution figure it presented at trial was $34,754.70. The reporter’s transcript states,
however, that the trial figure was actually $34,154.70. The People also used the
$34,154.70 figure at other points in its briefing.

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