The People v. DiMaio CA4/3

Filed 9/20/13 P. v. DiMaio CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G047319

v. (Super. Ct. No. 10HF2298)

JAMES VINCENT DIMAIO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Joy W. Markman, Judge. Affirmed. Reed Webb, 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, Randy Einhorn and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant James Vincent DiMaio was charged in a 16-count amended felony complaint with seven counts of grand theft (Pen. Code,1 § 487, subd. (a)), five counts of diversion of construction funds (§ 484b; misdemeanors), and four counts of issuing an insufficient funds check (§ 476a, subd. (a)). He pled guilty to all the charges. The court placed him on five years of formal probation, ordered him to serve one year in the county jail, imposed a $200 restitution fine, and ordered him to pay restitution on a number of the counts in an amount directed by the probation department. 2 In connection with the grand theft and diversion of construction funds alleged in counts 15 and 16, respectively, the court conducted a restitution hearing. At the conclusion of the hearing, the court ordered defendant to reimburse Reyburn Landscaping $169,750. Defendant appeals, contending the court abused its discretion in making the restitution order. I FACTS Stuart Reyburn, the previous owner of Reyburn Landscaping, testified at the restitution hearing. Defendant, who owned Just Palm Trees, supplied palm trees to Reyburn in the past. Reyburn had contact with defendant in December 2008, to January 2009, about supplying Reyburn with Canary Island palm trees for a job at M Casino in Las Vegas. 3 Reyburn testified he needed forty-three 17-foot to 25-foot Canary Island palms. Defendant said he could supply the trees within the needed timeframe. According to Reyburn, the approximate price was $8,500 per tree, delivered to Las Vegas.