Filed 12/12/13 P. v. Essapour CA4/1
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                     COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                    DIVISION ONE

                                            STATE OF CALIFORNIA


THE PEOPLE,                                                          D062563

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. SCD234059)

ZAYA ESSAPOUR,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Melinda J. Lasater, Judge. Affirmed in part, reversed in part and remanded with directions.



         Jill M. Klein, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Sharon L.

Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
       Zaya Essapour was charged with 21 offenses related to his involvement in a

conspiracy to defraud elderly homeowners into refinancing their mortgages. He pleaded

guilty to one count of theft from an elder, one count of unlawful use of personal identifying

information of another, and one count of grand theft. He also admitted that the aggregate

losses to the victims exceeded $65,000. The court dismissed the remaining charges with a

Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754 (Harvey)) and ordered Essapour to

pay a total of $2,293,915 in restitution, including to victims of uncharged and dismissed

counts. Essapour appeals, contending the trial court abused its discretion by: (1) ordering

him to pay restitution to victims whose losses were not related to his conduct; and

(2) double counting certain amounts in the restitution award. As we shall explain, we

conclude the trial court abused its discretion in holding Essapour jointly and severally

responsible for restitution to victims whose losses arose from crimes committed before

Essapour joined a conspiracy with his codefendants. Further, the Attorney General

concedes and we agree that the trial court made a calculation error.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The charges against Essapour and his codefendants, Pooyan Bakhtiar and Areyo

Dadar, arose out of a series of loan transactions between 2007 and 2009. In general, during

these transactions, an individual from Chase Mortgage Credit Group (Chase), La Jolla

Lending and Real Estate (La Jolla Lending), or American National Home Loans (American

National) offered to assist elderly homeowners with refinancing their home loans. Dadar

was an officer and real estate broker for Chase and La Jolla Lending. He employed

Bakhtiar, who was also a signatory on Chase's bank account. Essapour was a salesperson


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at a satellite office of American National, which was listed as the broker and received fees

related to some of the loans at issue. In some instances, the homeowners thought they were

dealing with Chase but their settlement statements showed American National was their

broker.

       Typically, the homeowners received a good faith estimate for a new loan which

reflected the terms they discussed with defendants or other individuals related to their

companies. Thereafter, a notary, often Bakhtiar, would arrive at their home with loan

documents for signature. Those loan documents generally did not reflect the terms that the

homeowner had agreed to, but the notary advised the homeowners to sign the documents or

reassured them that the terms would be corrected. When they received the closing

documents in the mail, the homeowners discovered that they did not receive the loans they

were promised. Some homeowners reported the principal amount of the loan and fees were

more than negotiated and some found they were subject to a prepayment penalty they had

not expected. As a result of refinancing, many homeowners were left with greater

obligations than they had with their prior loan.

       The complaint against Essapour and his codefendants identified 20 victims. After

the preliminary hearing, Essapour pleaded guilty to three offenses with three separate

victims. Essapour's guilty plea included a Harvey waiver, which stated, "[t]he sentencing

judge may consider [his] prior criminal history and the entire factual background of the

case, including any unfiled, dismissed or stricken charges or allegations or cases when

granting probation, ordering restitution or imposing sentence." The trial court placed

Essapour on four years probation, with 365 days in local custody.


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        At the restitution hearing, the prosecution presented evidence concerning losses

suffered by the 20 victims identified in the complaint and also identified 19 additional

homeowners who were victims of uncharged offenses. Essapour stipulated that he owed

restitution to seven victims, including Craig Hawbaker, Herbert Hilton, Franklin Huffman,

Richard Milford, Elias Mosqueda, Hugh Rae, and Gary Sheller, but not to the amounts

owed.

        The trial court ordered Essapour to pay $2,293,915 in restitution to 33 victims who

transacted loans on or after November 23, 2007. Those individuals included 19 victims of

uncharged offenses, five victims related to offenses charged only against Dadar and

Bakhtiar, and two victims identified in conspiracy charges which were dismissed as part of

Essapour's plea agreement. The trial court found "all . . . victims suffered losses due to

actions of a single large interconnected conspiracy and not smaller conspiracies relating

separately to the various mortgage institutions."

                                       DISCUSSION

                                I. Scope of Restitution Award

        Essapour argues the trial court abused its discretion by ordering him to pay

restitution to victims whose losses were not related to his conduct. Specifically, he

disputes the restitution awards to the 19 victims of uncharged offenses, the five victims

related to offenses charged only as to Dadar and Bakhtiar, and the two victims identified in

conspiracy charges which were dismissed. Essapour also disputes a portion of the

restitution award to a victim who transacted two loans with defendants.




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A. General Restitution Principles

       The parties dispute the statutory basis for the restitution order. Essapour claims

Penal Code section 1202.4 applies and therefore restitution is limited to actual economic

losses proximately caused by the criminal conduct at issue. (Undesignated statutory

references are to the Penal Code.) The People counter and we agree that section 1203.1

applies because Essapour was placed on probation. "When probation is granted to a

defendant, sections 1203.1 and 1203.04 govern restitution imposed as a condition of

probation. Section 1203.1 requires the court to 'consider whether the defendant as a

condition of probation shall make restitution to the victim or the Restitution Fund.' "

(People v. Foster (1993) 14 Cal.App.4th 939, 949.)

       The California Supreme Court explained the difference between the two statutes:

"Trial courts continue to retain authority to impose restitution as a condition of probation in

circumstances not otherwise dictated by section 1202.4. In both sections 1203.1 and

1202.4, restitution serves the purposes of both criminal rehabilitation and victim

compensation. But the statutory schemes treat those goals differently. When section

1202.4 imposes its mandatory requirements in favor of a victim's right to restitution, the

statute is explicit and narrow. When section 1203.1 provides the court with discretion to

achieve a defendant's reformation, its ambit is necessarily broader, allowing a sentencing

court the flexibility to assist a defendant as the circumstances of his or her case require."

(People v. Anderson (2010) 50 Cal.4th 19, 29 (Anderson).)




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       Section 1203.1 gives trial courts broad discretion to impose probation conditions to

foster rehabilitation and to protect public safety. The court may impose upon probationers

"reasonable conditions, as it may determine are fitting and proper to the end that justice

may be done, that amends may be made to society for the breach of the law, for any injury

done to any person resulting from that breach, and generally and specifically for the

reformation and rehabilitation of the probationer." (§ 1203.1, subd. (j).) "There is no

requirement the restitution order be limited to the exact amount of the loss in which the

defendant is actually found culpable, nor is there any requirement the order reflect the

amount of damage that might be recoverable in a civil action." (Anderson, supra, 50

Cal.4th at p. 27.)

       "A reviewing court may not invalidate any condition of probation, including

restitution, unless the condition '(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 . . . .' [Citations.]"

(People v. Goulart (1990) 224 Cal.App.3d 71, 78.) We review a victim restitution order

for an abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) A court

abuses its discretion only if its decision is arbitrary or capricious or based on a

demonstrable error of law. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382; People v.

Jennings (2005) 128 Cal.App.4th 42, 49.) We affirm the order if there is a factual and

rational basis for the restitution award. (People v. Gemelli (2008) 161 Cal.App.4th 1539,

1542; Akins, at p. 1382.)




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B. Analysis

       1. Victims of Uncharged Offenses

       Essapour contends the trial court erred in awarding restitution to 19 victims of

uncharged offenses because the record does not support a finding that his conduct was

related to the victims' losses; he was not involved in an overarching conspiracy; and even if

there was an overarching conspiracy, he cannot be liable for the loans transacted prior to

the time he joined the conspiracy. As we shall explain, we conclude the trial court erred in

holding Essapour responsible for restitution to victims of uncharged offenses whose loans

were transacted before Essapour was involved in a conspiracy with his codefendants. We

reject Essapour's remaining contentions.

       Relying substantially on People v. Meneses (2008) 165 Cal.App.4th 1648

(Meneses), Essapour argues he cannot be responsible for restitution to all victims because

each loan transaction was an individual conspiracy rather than part of a larger conspiracy

involving the other loans. In Meneses, the defendant was convicted of multiple offenses

related to his participation in a scheme to defraud insurance companies. (Id. at p. 1651.)

He was accused of obtaining stolen accident reports, using information from those reports

to contact accident victims, referring the victims to attorneys and chiropractors for which

he collected fees, and encouraging the victims to file false claims with various insurance

companies. (Ibid.) The court found the evidence did not support a single conspiracy

because "[t]he only common element i[n] each conspiracy was defendant himself." (Id. at

p. 1671.) In contrast, in this case, Essapour was not the only common element in each

transaction. Rather, the mechanics of each transaction, the individuals and companies


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involved, defendants' motives, and the types of losses suffered by the victims were largely

the same or related in some manner. The evidence reveals that Essapour and his

codefendants were involved in an ongoing scheme to deceive homeowners into refinancing

their mortgages so that the defendants could obtain substantial fees and commissions.

Essapour and his codefendants worked together using their multiple companies to achieve

an improper purpose. Accordingly, we conclude the trial court did not err in finding that

this scheme was one large overarching conspiracy rather than small individual conspiracies

as to each homeowner.

       We next consider whether Essapour should be required to pay restitution to victims

whose losses occurred before he joined the conspiracy. The prosecutor conceded that

Essapour did not join the conspiracy until June or July 2008. This concession was

supported by the evidence, which indicated that Essapour's involvement started in June

2008 when he was involved in a loan refinance for Gary and Marvel Sheller. Although the

exact date of Essapour's involvement is not clear, we can infer from the evidence that it

was as early as the first week of June 2008. Despite these facts, the trial court found

Essapour was jointly and severally responsible for restitution to all victims with settlement

loan dates on or after November 23, 2007. The selection of this date is not supported by

the record and appears to be arbitrary. We find no evidence in the record connecting

Essapour to the loan transactions that occurred prior to June 2008. Thus, there is no factual

or rational basis for the court's award. (People v. Marks (1988) 45 Cal.3d 1335, 1345 ["A

conspirator cannot be held liable for a substantive offense committed pursuant to the

conspiracy if the offense was committed before he joined the conspiracy."].)


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       Further, the court's order is not directed at deterring future criminality because for

the order to have a rehabilitative effect, "it must directly relate to the crime the defendant

has committed." (People v. Goulart, supra, 224 Cal.App.3d at p. 79.) In this case, we

cannot say the court's order related directly to the crimes Essapour committed because

there is no basis to connect him to the offenses committed prior to June 2008. Thus, we

conclude the court abused its discretion by choosing an arbitrary date to commence

Essapour's restitution responsibility.

       Without going into the details of the loans transacted with each victim of the 19

uncharged offenses, we find the trial court erred in requiring Essapour to pay restitution to

the victims who had loan settlement dates before June 2008. These victims were

Akinsette, Benton, Bush, Jones, Jordan, Lenz, Mejia, Monteleone, Powers, and Sanchez.

Accordingly, the restitution order is reversed as to those victims.

       2. Victims of Offenses Charged Only Against Dadar and Bakhtiar

       Essapour argues the trial court abused its discretion in ordering him to pay

restitution to five victims related to offenses charged only against Dadar and Bakhtiar.

These victims included Battistone, Lee, Louis, D. Smith, and R. Smith. Again without

going into the details of each loan, it appears that four of the five loans were transacted

between December 2007 and May 2008, which was before Essapour joined the conspiracy.

Those victims were Battistone, Lee, D. Smith and R. Smith. For the reasons previously

discussed, the order is reversed to the extent it requires Essapour to pay restitution to

Battistone, Lee, D. Smith and R. Smith.




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       3. Victims of Dismissed Conspiracy Charges

       Essapour argues the trial court abused its discretion by ordering him to pay

restitution to two victims identified in conspiracy charges which were dismissed. These

victims were DeJulio and Sevier. Both of these victims transacted loans with Bakhtiar,

Dadar and their companies after Essapour joined the conspiracy. A conspirator need not

personally participate in any of the overt acts associated with the conspiracy as long as he

or she conspired to commit the crime and an overt act is committed by a coconspirator.

(People v. Morante (1999) 20 Cal.4th 403, 417.) Throughout the duration of the

conspiracy, the act of one conspirator is the act of all members of the conspiracy. (People

v. Hardy (1992) 2 Cal.4th 86, 188.) Accordingly, there was a factual and rational basis for

the trial court to hold Essapour jointly and severally responsible for restitution to DeJulio

and Sevier. Further, we note that Essapour's guilty plea included a Harvey waiver, which

permitted the court to consider the entire background of the case, including dismissed

charges, in ordering restitution.

       4. Victim Hilton

       The trial court ordered Essapour to pay restitution to victim Hilton for two separate

loan transactions. Essapour disputes the restitution order as to the first of the two loans.

The People argue, and we agree, that Essapour forfeited this claim by stipulating that he

was responsible for restitution for both of Hilton's loans.

       At the restitution hearing, the People provided the court with a "Victim Restitution

Appendix," which listed all of victims and the amounts they were seeking in restitution.

Hilton was identified as victim 10 and 11 on the appendix, representing his two loan


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transactions. During the hearing, Essapour stated that he was not contesting restitution to

"Victim 10 and 11, Mr. Hilton." If Essapour was disputing his responsibility for one of the

loans, he could have omitted that number in his stipulation. He did not do so. Thus, we

conclude Essapour forfeited his claim as to victim Hilton.

       5. Victim Tennant

       Essapour argues the trial court abused its discretion by ordering him to pay

restitution to victim Tennant (one of the 19 victims of uncharged offenses) because there is

nothing in the record supporting an inference that Tennant suffered losses as a result of his

conduct or the conduct of his codefendants. We agree.

       The evidence before the trial court indicated that Tennant refinanced her loan with

Countrywide Bank and that institution received fees from the transaction. There is no

reference to Essapour, his codefendants, or any of their companies in relation to Tennant's

loan. The Attorney General argues there is sufficient evidence in the record to connect

Essapour to Tennant's loan transaction because in a statement to the probation officer "Mrs.

Tennant indicated that she [was] angry about what happened. She said she had to do a loan

modification and had to pay extra fees because of the instant offense. She said the total

amount of fees she was charged was $25,000." However, Tennant did not state that

defendants were in any way involved in her loan. Without some kind of evidence

suggesting that Tennant's loan was part of defendants' fraudulent loan scheme, we conclude

the trial court abused its discretion in ordering Essapour to pay restitution to Tennant.




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                                    II. Calculation Error

       Essapour contends the trial court erred by double counting closing costs and

prepayment penalties in the restitution awards. The Attorney General concedes and we

agree that the trial court double counted those amounts.

       In calculating the amount of restitution owed to the victims, the trial court used the

following formula: "New Loan Amount – Previous Loan Amount + Payment differential

from settlement date of loan up to July 2012 = RESTITUTION." Thereafter, the trial court

added certain variable amounts including fees to refinance the loan and prepayment

penalties. Adding these refinance fees and prepayment penalties, however, was an error

because those amounts were already included in the "New Loan Amount." Accordingly,

the trial court used a flawed method to calculate restitution and the matter must be

remanded for the trial court to correct any double counting of closing costs and prepayment

penalties.

       Lastly, we reject Essapour's argument that the trial court should not have awarded

restitution to two homeowners, Benton and Mosqueda, who refinanced out of their

fraudulent loans because those victims were no longer obligated to pay the fraudulent loan.

Homeowners reported suffering monetary losses as a result of defendants' loan scheme.

Essapour, however, failed to provide evidence establishing that these victims' losses were

remedied when they refinanced their loans. Accordingly, we conclude the trial court did

not abuse its discretion in ordering Essapour to pay restitution to these victims.




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                                       DISPOSITION

       The restitution order is reversed to the extent that it requires Essapour to pay

restitution to victims Akinsette, Benton, Bush, Jones, Jordan, Lenz, Mejia, Monteleone,

Powers, Sanchez, Battistone, Lee, D. Smith, R. Smith, and Tennant. The matter is

remanded to the trial court to recalculate its restitution order to eliminate double counting

of closing costs and prepayment penalties. In all other respects the judgment is affirmed.




                                                                               MCINTYRE, J.

WE CONCUR:


MCCONNELL, P. J.


NARES, J.




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