Filed 11/25/13; pub. and mod. order 12/19/13 (see end of opn.)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                            DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                                    G046881

        v.                                                       (Super. Ct. No. 07ZF0009)

SANDRA MARIE JESSEE,                                             OPINION

    Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Affirmed in part and reversed in part.
                 Eric R. Larson, 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, Lilia E. Garcia and
Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
              A jury convicted Sandra Marie Jessee of conspiracy to commit murder and
special circumstance first degree murder for financial gain, all in connection with the
slaying of her husband, Jack Jessee.1 Sandra was sentenced to life in prison without
parole and ordered to pay a total of $521,414 in victim restitution.
              Sandra does not contest her conviction or sentence. She merely challenges
four of the five restitution orders and the related abstract of judgment. We reverse one of
the challenged restitution orders, order the abstract of judgment corrected, and affirm the
judgment in all other respects.
                                          FACTS
              After trial, the prosecution requested victim restitution (Pen. Code,
§ 1202.4 (section 1202.4)) as follows: (1) $311,858 to Provident Life Insurance
Company, as repayment of the life insurance proceeds which Sandra received as a result
of Jack’s death; (2) $131,291 to Jack’s estate, as repayment of one-half of the 401k plan
Sandra received from Jack’s employer, Fujitsu Corporation; (3) $45,335 to Jack’s estate
as repayment of one-half of the proceeds Sandra received from the sale of the family
home; (4) $29,648 to the Allstate Insurance Company, for a related fraudulent automobile
theft claim perpetrated by Sandra and others; and (5) $3,282 to Jack’s daughter, Chere
Conrad-Williams, for costs associated with attending the hearings and trials.
              On May 4, 2012, a restitution hearing was held. The prosecution relied
upon the documents and testimony presented at trial, as the basis for “proving up” the
dollar amounts of the restitution requested in items 1 through 5 above. The defense
stipulated Chere Conrad-Williams was entitled to restitution in the amount of $3,282 as
requested. The defense also agreed the other dollar amounts requested were accurate, but
argued Jack’s estate and the insurance companies were not entitled any restitution at all.



       1 We refer to Sandra Jesse and Jack Jessee by their first names only for ease of
reading and to avoid confusion. No disrespect is intended.

                                             2
              The trial court did not issue a ruling that day, but instead continued the
hearing and ordered the parties to file written briefs on the issues.
              The prosecution filed a memorandum of points and authorities in support of
the restitution requested. The prosecution argued Jack’s estate and both of the insurance
companies were “victims” within the meaning of section 1202.4, subdivision (k). These
arguments were based in large part on the now superseded Court of Appeal opinion
(People v. Runyan (2010) 188 Cal.App.4th 1010, review granted Jan. 12, 2011, S187804)
in the case later decided by the Supreme Court as People v. Runyan (2012) 54 Cal.4th
849 (Runyan).
              The defense filed a memorandum of points and authorities in opposition to
the restitution requested. Among other things, the defense argued (a) neither Jack’s
estate nor the insurance companies were “victims” under section 1202.4, subdivision (k),
Sandra was the sole beneficiary of all of Jack’s assets, including the life insurance policy,
(c) there was no evidence Jack’s estate even existed, (d) Provident Life Insurance
Company suffered no loss, and (e) Sandra was not convicted of any crime which resulted
in a loss to Allstate Insurance Company.
              On June 22, 2012, another restitution hearing was held. The prosecution
argued “the purpose the restitution statute is to make sure the defendant isn’t unjustly
enriched by her criminal conduct.” The prosecution analogized to a theft case, and noted
“when you steal from somebody, you have to pay it back.” Finally, the prosecution
contended: “So the only issue then becomes, since Jack Jessee was killed for financial
gain, does his estate have the ability to recoup those losses? And I think that he does and
the estate does.”
              The defense argued, “The purpose of restitution is to compensate victims
for direct economic loss.” The defense noted the life insurance was a policy Sandra and
Jack had on each other, with the surviving spouse named as the direct beneficiary. “So
had Mr. Jessee died of his colon cancer three months later, Mrs. Jessee would have gotten

                                              3
every dime of that insurance policy, and no one would have ever been entitled to it. Had
she predeceased him, he would have been entitled to the value of her insurance policy
. . . . So this is not a direct economic loss to any victim. . . . [¶] I would make the same
exact argument with respect to the 401-K money, as well as the community property
shares of the marital home.”
              Similarly, the defense noted Jack’s daughters testified they were not
economically dependent upon him, and there was no evidence as to what Jack might have
provided for them if Sandra was written out of his will. “The reality is, not to be crass or
disrespectful, but they – in other words, it would be unjust enrichment of the asserters
now to get money that they never would have gotten in the first place. . . . They suffered
no losses economically.” Finally, the defense argued the types of restitution at issue in
this case were not the same as in Runyan.
              The prosecution responded: “The problem is that under the law, once she’s
convicted of that crime, she is removed from the equation. She cannot be the beneficiary
of the life insurance or the sale of the home or his 401-K if she caused the death in order
to financially benefit from it.”
              The prosecution reasoned, “Once you remove her from the equation, which
you have to do for the analysis, the beneficiary is the estate. If the People came in and
said please award X number of dollars to Chere Conrad-Williams and Cheryl Deanda
[Jack’s daughters], that would be totally inappropriate. However, the fact that – that they
would benefit if the money goes to the estate is not the relevant question. It’s not
whether they get unjustly enriched or whether they get money that they wouldn’t have
gotten if Jack Jessee had died of natural causes. That’s not the analysis at all. It’s the
fact that the defendant killed him and she killed him to get to his life insurance and his
401-K. She can’t benefit. You pull her out of the equation. It goes to the estate, and the
estate distributes it as is determined under the law of the state of California or based on,
you know, any contingencies he may have had in a will or a trust.”

                                              4
               A short time later, the trial court stated: “Well, the fact is the money was
paid, and all I am simply saying is the money is out there. It was based on the trial
evidence paid to the defendant. And let’s just assume that $311,000 is still in existence.
Let’s assume just for the sake of argument that the defendant is not entitled to it. In light
of the conviction here of murder for financial gain, that money has to go somewhere.
And the real question is . . . . [¶] . . . does the money go back to Provident or does it go
to where? The question of where, it would seem that it would go to the estate.”
               Ultimately, the trial court ordered Sandra to pay restitution as follows:
(1) $311,858 to Jack’s estate as repayment of the life insurance proceeds; (2) $131,291 to
Jack’s estate as repayment of one-half of the 401k plan; (3) $45,335 to Jack’s estate as
repayment of one-half of the proceeds from the sale of the family home; (4) $29,748 to
the Allstate Insurance Company for the fraudulent automobile theft claim; and (5) $3,282
to Chere Conrad-Williams for the costs of attending the hearings and trials. Each item
was set out in a separate restitution order.
               With respect to the restitution ordered in favor of Allstate Insurance
Company, the trial court declared: “I am going to make a finding . . . there was proof
beyond a reasonable doubt that the defendant was a perpetrator of insurance fraud
regarding the false report of . . . the theft of the Ford Explorer. [¶] Allstate, according to
the evidence, paid $27,748.29. My finding is that there was proof beyond a reasonable
doubt that defendant defrauded Allstate Insurance out of that money.”
               With respect to all restitution ordered, the trial court stated: “The
restitution that I am going to order will be a joint and several liability; that is, the
restitution obligation will not be totally the defendant’s obligation. There are three
convicted people in this case so far [Sandra, her son Thomas Aehlert, and Brett
Schrauben], and Mr. [Thomas] Garrick is out there pending somewhere. If he’s
convicted, I’m thinking that he’s going to be responsible for restitution, so it’s joint and
several.”

                                                5
                                         DISCUSSION
A. General Principles and Standard of Review
              “The burden is on the party seeking restitution to provide an adequate
factual basis for the claim.” (People v. Giordano (2007) 42 Cal.4th 644, 664.) “The
standard of proof at a restitution hearing is preponderance of the evidence, not reasonable
doubt.” (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319.) Once the prosecution
has made 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. Prosser (2007) 157 Cal.App.4th 682, 691.)
              On appeal, we review a restitution award for abuse of discretion. (People v.
Giordano, supra, 42 Cal.4th at p. 663; People v. Hudson (2003) 113 Cal.App.4th 924,
927.) The award must be supported by sufficient evidence under the substantial evidence
standard of review. (People v. Millard (2009) 175 Cal.App.4th 7, 26; People v. Thygesen
(1999) 69 Cal.App.4th 988, 993.) “We do not reweigh or reinterpret the evidence; rather,
we determine whether there is sufficient evidence to support the inference drawn by the
trier of fact.” (People v. Baker (2005) 126 Cal.App.4th 463, 469.)
B. Section 1202.4
              Section 1202.4, subdivision (a)(1), declares “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.”
Accordingly, “in 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. . . .” (§ 1202.4, subd. (f).) Restitution “shall be of a dollar amount that
is sufficient to fully reimburse the victim or victims for every determined economic loss
incurred as the result of the defendant’s criminal conduct” (§ 1202.4, subd. (f)(3)), and
must include, but is not limited to, such costs as “the value of stolen or damaged
property” (§ 1202.4, subd. (f)(3)(A)).

                                              6
              For purposes of section 1202.4, subdivision (k)(1), a “victim” is defined to
include, among others, the actual victim’s immediate surviving family, as well as
specified relatives of the actual victim, and present and certain former members of the
victim’s household, who sustained economic loss as a result of the crime (§ 1202.4,
subd. (k)(3)(A)-(D)). A “victim” also includes “[a] corporation, business trust, estate,
trust, partnership, association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity when that entity is a
direct victim of a crime.” (§ 1202.4, subd. (k)(2), italics added.)
C. Sandra Cannot Benefit From Murdering Jack
              As a preliminary matter, we note the trial correctly concluded Sandra is not
entitled to the life insurance proceeds or any other property, interest, or benefit she might
otherwise have obtained as a result of Jack’s death. The defense arguments to the
contrary have no merit. Probate Code section 250 et seq. expressly provides a person
convicted of murdering a decedent cannot succeed to any portion of the decedent’s estate.
(See generally 14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate,
§ 293, p. 380.) Specifically, as relevant here, these statutes cover: (a) property under a
will or by intestate succession (Prob. Code, § 250); (b) joint tenancy property (Prob.
Code, § 251); and (c) the proceeds of life insurance and similar contracts (Prob. Code, §
252). For all of these purposes Sandra is deemed to have predeceased Jack. (14 Witkin,
Summary of Cal. Law, supra, Wills and Probate, § 294, p. 381.)
D. Restitution Awarded to Jack’s Estate
              Sandra challenges the three restitution orders in favor of Jack’s estate
representing the life insurance proceeds, one-half of the 401k plan, and one-half of the
proceeds from the sale of the family home. She contends all three of these restitution
awards were unauthorized and must be reversed based upon the Supreme Court decision
in Runyan. Among other things, Sandra argues Jack’s estate is not entitled to restitution
because it was not a direct victim of her crimes. We disagree.

                                              7
              Less than a month after the trial court issued the challenged restitution
orders in this case, the Supreme Court decided Runyan. In that case, the defendant,
driving while intoxicated, killed another driver instantly in a freeway collision. The
defendant was convicted of gross vehicular manslaughter with intoxication and sentenced
to prison. In addition, the defendant was ordered to pay substantial restitution to the
decedent’s estate. The restitution award represented post-death loss in value of the
decedent’s business and property, together with probate, estate administration, and
funeral expenses. The Court of Appeal affirmed the award by the trial court.
              The Supreme Court granted review “to decide if and when one convicted of
a felony is required by the California Constitution and statutes to pay restitution to the
estate or personal representative of a victim of the crime who has died.” (Runyan, supra,
54 Cal.4th at p. 853.) The Supreme Court held that, for purposes of restitution, the estate
itself was not a “‘direct victim’” of the crime that caused the decedent’s death. (Id. at
p. 857.) This was true because: “The case law has ascribed a precise meaning to the
phrase ‘direct victim,’ as that phrase has appeared in several restitution statutes. Thus, it
is established that a statute ‘permitting restitution to entities that are “direct” victims of
crime [limits] restitution to “entities against which the [defendant’s] crimes had been
committed”—that is, entities that are the “immediate objects of the [defendant’s]
offenses.” [Citation.]’ [Citations.]” (Id. at p. 856.)
              As the Supreme Court explained the victim’s estate in Runyan was not a
“direct victim” of the fatal collision, because the estate was not an entity against which
defendant committed his offenses, and “it was not the immediate object of those
offenses.” (Runyan, supra, 54 Cal.4th at p. 857.) Indeed, “the estate did not even exist at
the time the crimes were committed; it came into being only as a result of those offenses.
Hence, the estate is not entitled to restitution, on its own behalf, as an entity itself directly
targeted and victimized by defendant’s crimes.” (Ibid.)



                                                8
              The Supreme Court also held: “[W]e are persuaded that a deceased
victim’s estate may, in appropriate cases, receive restitution in a different capacity, and
for a different reason. When the actual victim of a crime has died, the estate, acting in the
decedent’s stead, steps into the decedent’s shoes to collect restitution owed to the
decedent, but which the decedent cannot personally receive because of his or her death.”
(Runyan, supra, 54 Cal.4th at p. 857.) “Thus, a decedent’s estate . . . is a proper
recipient, on the decedent’s behalf, of restitution owed to the decedent, as an actual and
immediate crime victim, for economic losses the decedent incurred as a result of the
defendant’s offenses against the decedent.” (Ibid.)
              Applying these principles to the case at bar reveals restitution was properly
awarded to Jack’s estate either on its own behalf, or in its capacity as Jack’s personal
representative. The logic is quite simple. Sandra was convicted of conspiracy to commit
murder and special circumstance first degree murder for financial gain. There is no doubt
one immediate object of those crimes was the life insurance and other assets which were
owned by Jack, and which became part of Jack’s estate as a result of his death. So in this
sense, Jack’s estate itself is an entity against which those crimes were committed. Under
these circumstances, we conclude Jack’s estate is entitled to restitution, on its own behalf,
as an entity itself directly targeted and victimized by Sandra’s crimes.
              There is one problem with this conclusion. Jack’s estate itself did not exist
at the time those crimes were committed and only came into being as a result of those
crimes. However, we also conclude this is an appropriate case for the estate to receive
restitution under the alternative rationale discussed in Runyan. When Jack died, the
estate stepped into his shoes to collect restitution owed to him, but which he could not
personally receive. Thus, Jack’s estate is a proper recipient of any restitution owed to
Jack, for economic losses he incurred as a result Sandra’s crimes. These losses include
the life insurance proceeds, and at least one-half of the 401k plan and the proceeds from
the sale of the family home, all of which were incurred upon Jack’s death, not after.

                                              9
E. Restitution Awarded to Allstate Insurance Company
               Sandra also asserts that because she was convicted of conspiracy to commit
murder and murder, but not insurance fraud, the restitution order in favor of Allstate
Insurance Company was also unauthorized and should also be reversed. We agree. By
its own terms, section 1202.4, subdivision (a)(1), only authorizes a crime victim to
receive restitution “from a defendant convicted of that crime.” Likewise, section 1202.4,
subdivisions (a)(2) and (a)(3)(B) provide, “(2) Upon a person being convicted of a
crime . . . the court shall order the defendant to pay. . . . [¶] . . . [¶] (B) Restitution to the
victim or victims . . . .” Based upon the plain language of these statutes, we conclude
restitution may only be awarded for crimes the defendant is charged with and convicted
of, even if the evidence shows beyond a reasonable doubt and the trial court finds the
defendant committed an uncharged crime. Therefore, the restitution order in favor of
Allstate Insurance Company constitutes and abuse of discretion and must be reversed.
F. Abstract of Judgment
               Finally, Sandra argues the abstract of judgment is erroneous and should be
amended. She notes the abstract makes no mention of the trial court’s oral
pronouncement that the restitution orders are to be joint and several obligations of Sandra
and her coconspirators, and the abstract incorrectly includes “Provident Life Insurance,
Allstate Insurance, and Fujitsu” as parties awarded restitution. The Attorney General
agrees as do we.
               Therefore, the abstract shall be amended to reflect the written restitution
orders in favor of the estate of Jack Jessee and Chere Conrad-Williams filed on June 26,
2012, and to delete any reference to Provident Life Insurance Company, Allstate
Insurance Company and Fujitsu. Furthermore, the abstract shall be amended to state the
restitution orders are joint and several obligations of Sandra, Thomas Aehlert, and Brett
Schrauben, the coconspirators convicted thus far, together with Thomas Garrick, if and
when he is ever convicted of these same crimes.

                                                10
                                     DISPOSITION
              All of the restitution orders in favor of the estate of Jack Jessee and Chere
Conrad-Williams are affirmed. The restitution order in favor of Allstate Insurance
Company is reversed. The clerk of the Orange County Superior Court is directed to
amend the abstract of judgment to (a) delete any reference to Provident Life Insurance
Company, Allstate Insurance Company and Fujitsu, and (b) state the restitution orders are
joint and several obligations of Sandra Jessee, Thomas Aehlert, and Brett Schrauben,
together with Thomas Garrick, if and when he is ever convicted of these same crimes.
The clerk of the Orange County Superior Court is further directed to forward a copy of
the amended abstract of judgment to the Department of Corrections and Rehabilitation.
The judgment is affirmed in all other respects.



                                                  THOMPSON, J.

WE CONCUR:



FYBEL, ACTING P. J.



IKOLA, J.




                                             11
Filed 12/19/13

                             CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                       DIVISION THREE

THE PEOPLE,

    Plaintiff and Respondent,                        G046881

        v.                                           (Super. Ct. No. 07ZF0009)

SANDRA MARIE JESSEE,                                  ORDER CERTIFYING OPINION
                                                      FOR PUBLICATION AND
    Defendant and Appellant.                          MODIFYING OPINION; NO
                                                      CHANGE IN JUDGMENT




        Respondent requested that our unpublished opinion, filed on November 25, 2013,
be ordered published. It appears that our opinion meets the standards set forth in
California Rules of Court, rule 8.1105(c). The request for publication is GRANTED.
        It is ordered that the opinion filed on November 25, 2013, be modified as follows:
        1. On page 7, delete the first sentence and replace it with the following:
                        For purposes of section 1202.4, a “victim” is defined
                 to include, among others, the actual victim’s immediate
                 surviving family (§ 1202.4, subd. (k)(1)), as well as specified
                 relatives of the actual victim, and present and certain former
                 members of the victim’s household, who sustained economic
                 loss as a result of the crime (§ 1202.4, subd. (k)(3)(A)-(D)).
       2. On page 10, in the final sentence of the first paragraph, delete the word “and”
and replace it with “an.”
       The modification does not change the judgment.




                                                 THOMPSON, J.

WE CONCUR:



FYBEL, ACTING P. J.



IKOLA, J.




                                             2
