California Court of Appeal Jun 9, 2022 No. E077257Unpublished
Filed 6/9/22 P. v. Allotey CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E077257
v. (Super. Ct. No. FSB17004661)
BARBARA A. ALLOTEY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. David J. Mazurek,
Judge. Affirmed.
Heather E. Shallenberger, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland and Andrew Mestman, Deputy Attorneys General, for
Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant Barbara A. Allotey pleaded guilty to one count of
CALFRESH or Supplemental Nutrition Assistance Program (SNAP) fraud (count 3) in
violation of Welfare and Intuitions Code section 10980, subdivision (g)(2). In return, the
remaining eleven counts were dismissed and defendant was placed on probation for a
in setting the amount of restitution is broad, and it may use any rational method of fixing
the amount of restitution as long as it is reasonably calculated to make the victim
whole.’” (Millard, supra, 175 Cal.App.4th at p. 26.) “‘There is no requirement the
restitution order be limited to the exact amount of the loss in which the defendant is
actually found culpable, nor is there any requirement the order reflect the amount of
damages that might be recoverable in a civil action.’” (Id. at pp. 26-27.)
The trial court’s restitution order here was reasonable and supported by substantial
evidence. In the present case, the People satisfied their prima facie burden for a
restitution award by presenting a detailed and rational statement of economic loss through
testimony from Agent Young and documentation to support Agent Young’s statement of
economic loss. Agent Young explained the method she had used to calculate the
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restitution amount. She stated that she had utilized the “store comparison method” of
computation to determine the amount of losses and that this method was an acceptable
method used to compute losses for stores fraudulently redeeming EBT benefits. Agent
Young noted that she had used the store comparison method to calculate losses in
approximately 100 cases she had worked on and that she had learned about this
calculation method through trainings, discussions with other agents, and court cases that
have utilized this method. Based on this showing, we conclude the People satisfied their
prima facie burden of demonstrating the victim’s loss. (People v. Gemelli, supra, 161
Cal.App.4th at p. 1544 [prima facie burden satisfied based on probation officer’s report
and victim statement listing losses].)
When the People met their prima facie burden of demonstrating the victim’s loss,
the burden shifted to defendant to demonstrate the amount of the loss was other than that
claimed. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1543.) Thus, it was incumbent
upon defendant to “come forward with contrary information to challenge that amount.”
(People v. Foster (1993) 14 Cal.App.4th 939, 947, superseded by statute on another
ground as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) Defendant here
attempted to challenge the method utilized by Agent Young. However, the trial court
found the method used by Agent Young to calculate loss was “a standard method
generally accepted within that community” and was a “rational basis” for computing the
loss. The court concluded that J & K Market’s revenues were “grossly disproportionate
to other comparable stores within the . . . general area,” thereby rejecting codefendant’s
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testimony that J & K Market was similar to large grocery stores. Defendant failed to
rebut the claimed economic losses of the victim. Our role “‘“‘begins and ends with a
determination as to whether there is any substantial evidence, contradicted or
uncontradicted,’ to support the trial court’s findings.”’” (Millard, supra, 175 Cal.App.4th
at p. 26.) In the present case, Agent Young’s testimony sufficiently met this standard.
Defendant argues the comparative method used by Agent Young was “not a
rational means of computation” and the amount ordered was “overly speculative.”
However, as we previously explained, “‘the trial court is vested with broad discretion in
setting the amount of restitution [and] it may “‘use any rational method of fixing the
amount of restitution which is reasonably calculated to make the victim whole.’”’”
(People v. Ortiz (1997) 53 Cal.App.4th 791, 800; People v. Tucker (1995) 37 Cal.App.4th
1, 6.) All that is required is that the court’s award have a “rational” basis (People v.
Ortiz, supra, at p. 799), and the standard of proof at a restitution hearing is preponderance
of the evidence. (People v. Baker, supra, 126 Cal.App.4th at p. 469.) We find nothing
irrational in Agent Young’s valuation method, which the court relied on, or the amount to
be speculative.
Defendant cites to methods used to determine restitution in two federal cases
involving SNAP fraud to argue that the comparative method used here “produces an
unjust result.” Even if there are other more accurate methods of calculating the loss to
the USDA, as defendant postulates, the trial court’s method for determining the amount
of restitution that would make the USDA whole, which was based on Agent Young’s
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testimony, was not irrational, arbitrary, or capricious. (See People v. Giordano, supra, 42
Cal.4th at p. 666 [“[d]espite the trial court’s methodological imprecision, defendant has
not shown that the amount of restitution ordered was an abuse of the trial court’s
discretion”].) “On appeal, we presume that a judgment or order of the trial court is
correct, ‘“[a]ll intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown.”’ [Citation.]” (Ibid.,
quoting Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.)
“[I]t is irrelevant that there may be other reasonable ways of calculating [the
victim’s loss], or even whether this court would have selected the method adopted by the
trial court if we had determined the restitution amount in the first instance. Instead, we
may reverse the trial court’s order only if we determine that the method the court adopted
was arbitrary, capricious, or irrational. This we cannot do, because there is a rational
basis for using the formula the court adopted.” (People v. Akins (2005) 128 Cal.App.4th
1376, 1389.)
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IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in ordering $1,051,036 in victim restitution, as the "store comparison method" used to calculate the loss provided a rational basis supported by substantial evidence.
Issues
Whether the trial court abused its discretion in awarding $1,051,036 in victim restitution.
Whether there was sufficient evidence to support the restitution amount calculated using the store comparison method.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court has broad discretion in setting the amount of restitution and can use any rational method of establishing that amount.”
“The trial court’s restitution order here was reasonable and supported by substantial evidence.”
“We find nothing irrational in Agent Young’s valuation method, which the court relied on, or the amount to be speculative.”