People v. Burke CA1/5

Filed 8/28/20 P. v. Burke CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, A157838 v. ANTHONY EDWARD BURKE, (Sonoma County Defendant and Appellant. Super. Ct. No. SCR-696156)

Anthony Edward Burke challenges the trial court’s victim restitution award imposed after he pled no contest to two charges, including felony elder abuse through fraud (Pen. Code, § 368, subd. (d)).1 Burke contends a portion of the restitution award “was in excess of the victim’s costs for reimbursement and repair,” constituting an impermissible “windfall.” We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND Edith R. hired Burke to repair the foundation at her Santa Rosa home. Burke told Edith he was a licensed and insured contractor with two engineering degrees and “ ‘a crew of sixteen.’ ” Edith and Burke signed a

1 Undesignated statutory references are to the Penal Code.

1

contract for the construction work, which called for a flat fee of $14,000 for the job. Edith paid Burke a deposit of $9,000. The work was estimated to be completed by the end of May 2016. Burke was not a licensed contractor. He did not obtain permits, and he stopped work on the property in June 2016. Edith reported Burke to the district attorney. Burke plead no contest to felony elder abuse through fraud (§ 368, subd. (d)) and misdemeanor contracting without a license (Bus. & Prof. Code § 7028, subd. (a)). He admitted having suffered a prison prior (§ 667.5, subd. (b)). Pursuant to the plea agreement, the court imposed an aggregate four- year sentence. A. At a conditional examination, Edith described the damage Burke caused to her property. Among other things, Burke dug an unnecessary trench in the yard, left a wall open, and installed the wrong type of pipes. When Burke stopped working, Edith’s property was in “shambles, unfinished, and everything was . . . done wrong,” “the cement had to be jackhammered out and the PVC pipes had . . . to be buried and everything had to be redone [¶] . . . [¶] from scratch.” Edith hired two workers, including her son, Michael, to fix Burke’s work and repair the damage Burke caused. Michael cleaned up the area under the house; he also secured one of the walls, closed up a hole in that wall, and painted it. Michael also removed and replaced pipes Burke had installed incorrectly. Edith paid Michael $7,223 for the work based on an hourly rate of $28; she documented the time he spent working. Edith paid $7,122 for materials. Edith paid another worker $4,800 to finish and repair the cement work. This expense was necessary because Burke had poured concrete against the