Filed 3/28/14 P. v. Kuivenhoven CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A137019
v.
DIRK JOHANNAS KUIVENHOVEN,                                           (Solano County
                                                                     Super. Ct. No. FCR263266)
         Defendant and Appellant.


         After conviction for theft from an elder, forgery, and other offenses, defendant
was ordered to pay $85,637 in restitution to the victim as a condition of his probation.
He appeals the amount of the award. We agree the record does not support the amount of
the award, and will modify the probation order to reduce the award to $30,242.
                                               I. BACKGROUND
         Defendant was charged by amended information with theft from an elder or
dependent adult (Pen. Code,1 § 368, subd. (d)), forgery (§ 470, subd. (d)), grand theft
(§ 487, subd. (a)), identity theft (§ 530.5, subd. (a)), obtaining money, labor, or property
by false pretenses (§ 532, subd. (a)), and second degree commercial burglary (§ 459). As
to all counts, the information alleged that defendant intentionally took, damaged and
destroyed property of a value exceeding $200,000. (§ 12022.6, subd. (a)(2).)
         A jury found defendant guilty of all counts and found the monetary enhancement
allegations to be true. The trial court suspended imposition of sentence and placed


         1
             All further statutory references are to the Penal Code.
defendant on probation for five years with a condition of 300 days in jail. On January 26,
2012, defendant filed a notice of appeal from his convictions.2 On October 31, 2012, the
trial court ordered payment of restitution as a modified condition of defendant’s
probation. Defendant timely appealed from the restitution order.
A. Prosecution Evidence
       James DiPietro, age 69 in 2006, was looking into refinancing his home to lower
his interest rate and get some cash from his equity. He responded to a flyer he received
in the mail from Transamerica Financial. Svetlana Conway came to DiPietro’s home to
give him an estimate. She wrote out a proposal for a bank loan of $300,000 representing
DiPietro’s payments would be lowered to $850 a month, he would receive $40,000 from
the equity, and the payments would increase slightly over the next few years. A week to
10 days later defendant, Conway, and a notary arrived at DiPietro’s home to have him
sign the loan documents.
       After DiPietro signed a few documents, he saw the schedule of payments and
realized it was vastly different than previously represented by Conway. Instead of $850 a
month, the payments were $1,600 and $1,700 a month and the interest rate was “sky
high.” The loan also had a variable interest rate which DiPietro had not expected. The
payments would have increased to $2,850. Despite defendant’s insistent attempts to
convince him otherwise, DiPietro refused to sign any more loan papers, and defendant,
the notary, and Conway left. DiPietro testified he signed a release document that
defendant assured him would prevent the loan from going through.
       About two weeks later, DiPietro received a check for approximately $47,000 from
Chicago Title Company in Vacaville. He contacted the company to find out why he had
received the funds. He sent the check back to the title company, but it was sent back to
him. DiPietro went to the police but they did not believe him initially. He met with the
manager of the title company, Becky Larson, and discussed with her which documents he

       2
         Defendant’s appeal from the convictions, case No. A134608, was dismissed after
he failed to surrender for custody under the terms of his probation. Defendant
subsequently surrendered.


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had actually signed and which documents he believed had been forged. DiPietro returned
to the police department with Larson, and they opened an investigation. DiPietro
deposited the title company check into his bank account on the advice of a lawyer who
told him to use it to make payments on the loan. DiPietro made payments on the loan as
long as he could, to avoid losing his home. Eventually, he could no longer keep up with
the payments and declared bankruptcy.
       At trial, Conway corroborated DiPietro’s testimony. She testified defendant had
instructed her to tell DiPietro the loan had a fixed rate, not a variable rate. He told her to
increase the amount of DiPietro’s income on his loan application to World Savings, the
lender Transamerica Financial was working with at the time. She testified defendant told
DiPietro where to sign on a document giving him notice of his right to cancel the loan,
and led him to believe that by signing the document he was canceling the loan. However,
DiPietro signed the line acknowledging notification, not the actual cancellation line.
Conway admitted defendant instructed her to finish signing the documents and take them
to the title company, and testified he coerced her into doing so when she objected. Both
Conway and defendant received fees linked in part to the amount of the loan and its
interest rate.
       After defendant learned of the police investigation, he told Conway to say
DiPietro signed the documents, was drunk at the time, and had undergone hand surgery
so his signature might change. She was also to say defendant was not involved in the
transaction and was only present to drive her there because she had a flat tire. She did as
he directed initially. Conway later changed her mind, pleaded guilty to two felonies, and
agreed to provide testimony in defendant’s case.
B. Restitution Order
       At the restitution hearing, the prosecution presented a damages chart and
settlement statement from Chicago Title Company dated May 16, 2006 showing that as a
result of the World Savings loan, the total debt against DiPietro’s property increased by




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$102,864,3 for which DiPietro paid increased monthly principal of $738.60 per month for
75 months (totaling $55,395) and incurred accrued interest of $17,311.4 In addition, the
chart showed a notary fee of $150 that DiPietro apparently paid outside of the escrow
closing. Other transaction costs were paid out of the loan proceeds. In addition, part of
the loan proceeds were applied at the closing to pay off credit card balances owed by
DiPietro (totaling $42,822), and another $47,261 of the proceeds were paid by check to
DiPietro, for a total of $90,083 in financial benefits and cash payments received by
DiPietro from the loan. The prosecution argued DiPietro was entitled to restitution equal
to the sum of $102,864 (the increased amount of the loan over DiPietro’s prior mortgage
debt), plus $55,395 (the increased principal payments he made), plus $17,311 (accrued
interest he paid), plus $150 (the notary fee paid outside of escrow), minus the $90,083 in
payments received or benefitting him, for a net total of $85,637. The prosecution also
requested $206,440 in attorney fees and costs incurred by DiPietro as a result of the
fraudulent loan. The trial court awarded DiPietro restitution in the amount of $85,637.
                                    II. DISCUSSION
       Defendant contends the restitution award impermissibly double-counts part of the
increased amount of DiPietro’s loan by failing to recognize that the principal payments
DiPietro made reduced the size of his loan debt. According to defendant, the court
should have first (1) subtracted the total of the principal payments DiPietro made
($55,395) from the increased loan amount ($102,864) to reduce the latter figure to
$47,469; (2) added that reduced amount of $47,469 to the sum of DiPietro’s principal
payments and accrued interest ($55,395 + $17,311 + $47,469 = $120,175); (3) added the
$150 escrow fee to the resulting sum of $120,175; and then (4) subtracted DiPietro’s

       3
        The total debt increase amount of $102,864 was calculated based on the
difference between the principal amount of the World Savings loan ($320,000) and the
sum of the remaining principal balances of the two mortgage loans that were paid off at
the May 16, 2006 closing ($187,136 + $30,000).
       4
        We are unable to determine from the record where the principal payment and
accrued interest figures came from, but defendant does not contest them and we will
assume for purposes of analysis they are correct.


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financial benefit from the loan ($90,083), to arrive at a restitution award of $30,242.5 We
agree in substance with defendant’s position.
       Former section 1202.4, subdivision (a) (as it read in 2006) provided as follows for
restitution to victims of criminal offenses: “It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission of a crime shall
receive restitution directly from any defendant convicted of that crime.” Restitution is
mandatory upon a showing of economic loss by the victim: “[I]n every case in which a
victim has suffered economic loss as a result of the defendant’s conduct, the court shall
require that the defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by the victim or victims
or any other showing to the court. . . . The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states them on the record.”
(§ 1202.4, subd. (f).) Victim restitution under section 1202.4, becomes a restitution
condition of probation if probation is imposed. (§§ 1202.4, subd. (m), 1203.1, subd. (j.)
       An order for restitution is reviewed for abuse of discretion. (People v. Giordano
(2007) 42 Ca1.4th 644, 663.) Under that standard, the trial court must have a factual and
rational basis for the amount of restitution it orders. (People v. Keichler (2005)
129 Cal.App.4th 1039, 1045.) The same holds true for restitution imposed as a condition
of probation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1125.) The amount of
restitution must be proved by a preponderance of the evidence. (People v. Gemelli
(2008) 161 Cal.App.4th 1539, 1542–1543.)
       The People fail to satisfactorily explain why it is not double-counting to include as
DiPietro’s economic losses both the full amount of the increased loan obligation that he
assumed as a result of defendant’s conduct and the principal payments he made to pay off
and reduce that obligation. The People state: “The victim’s increased debt was the
underlying basis for the restitution award, reduced only by the cash the victim received as


       5
        Defendant follows this method but gets his arithmetic wrong and arrives at an
incorrect figure of $30,277.


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proceeds. The victim’s payments toward that increased debt were properly accounted for
by the trial court’s clearly-stated method of calculation. . . . The principal may later have
been reduced by the victim’s application of the check to payment of the loan, but that
check had already been deducted from the restitution amount in the first calculation and
could not properly be deducted again.” The People apparently contend that because
DiPietro assertedly spent his cash payout of $47,261 to fund loan payments, subtracting
the full amount of his principal payments from his economic loss, as defendant’s
calculation effectively does6 would result in a double deduction for the cash payout he
received.
       We are not persuaded. First, as a matter of arithmetic, defendant’s proposed
formula does not in fact double-count the cash payout. The difference between
defendant’s proposed restitution award and the trial court’s award is $55,395, which is
the amount of the principal payments, not $47,261, the amount of the cash DiPietro
received at the closing. It is therefore not correct that defendant’s proposed formula
doubly deducts the cash payout from DiPietro’s economic loss. It properly deducts the
payout once to account for the fact that DiPietro was able to use it to reduce the principal
owing on the increased debt by $47,261, at no further expense to himself. As discussed
in the next paragraph, additional principal payments he did make at his own expense do
not add to his losses, they only affect how the loss is categorized.
       Second, defendant is correct that it is double-counting to include as DiPietro’s
losses both the full amount of his increased debt on the closing date, and the amount of
the principal payments he subsequently made on that debt. Suppose person A wrongfully
causes person B to become indebted to World Savings for $100, and B then immediately
repays the debt in full to avoid having to pay interest. B’s repayment does not increase
his loss from $100 to $200, nor for that matter does it eliminate the loss. It merely
changes the form of the loss from an outstanding debt to an out-of-pocket payment.

       6
       The difference between the restitution amount awarded of $85,637 and the
$30,242 award arrived at by correctly applying defendant’s proposed methodology is
$55,395—the exact amount of DiPietro’s principal payments.


                                              6
Whether B repays $10, $20, $100, or zero dollars on the debt, his economic loss
(disregarding interest), is still $100. It does not change each time he makes a repayment
of principal. If anything, the making of principal payments actually reduces the
economic cost attributable to the loan by reducing the interest that would otherwise
accrue on it.
       The restitution amount in this case should have been determined by adding
together the original amount of the increased debt resulting from the World Savings loan
($102,864), the interest DiPietro paid on the increased debt ($17,311), and the notary fee
he paid outside of escrow ($150), and then subtracting from the total of those three items
the sum of the cash payout he used to pay down the debt principal ($47,261) and the prior
credit card debt paid at escrow ($42,822) to arrive at a restitution award of $30,242.
Principal payments are not used in the calculation because they do not in themselves add
to or decrease DiPietro’s loss. While this calculation is slightly different from that
proposed by defendant, it is arithmetically equivalent.
       Finding no factual or rational basis in the record for the trial court’s restitution
award of $85,637, we will modify the probation order to reduce the amount of restitution
to $30,242.
                                    III. DISPOSITION
       The probation modification order of October 31, 2012 is modified to specify that
defendant shall pay restitution to the victim in the amount of $30,242 rather than
$85,637. As so modified, the order is affirmed. The trial court is directed to amend its
records to reflect the modification and to forward the appropriate amended documents to
defendant and to the probation department.




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                                               _________________________
                                               Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Becton, J.*




*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



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