People v. Kuivenhoven CA1/1

Filed 3/28/14 P. v. Kuivenhoven CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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