P. v. Bermudez CA1/4

Filed 5/24/13 P. v. Bermudez CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, A135693 v. ALEXANDER BERMUDEZ, (San Francisco County Super. Ct. Nos. 10022384, 10004772) Defendant and Appellant.

Alexander Bermudez challenges the amount of restitution awarded to a victim who lost his home as a result of Bermudez’s criminal conduct. He contends that the trial court abused its discretion in calculating restitution based on an appraised value of the home at the time of the crime. We disagree and affirm the restitution order. I. BACKGROUND A. The Criminal Charges and Disposition Bermudez was charged in two separate cases with multiple counts of committing a financial crime against elder or dependent adults (Pen. Code, § 368, subd. (d))1 and grand theft (§ 487(a)). He negotiated a plea bargain under which he pleaded guilty to two counts of grand theft, and the remaining charges were dismissed. The trial court suspended imposition of the sentence and placed Bermudez on probation for five years. As a condition of probation, the court ordered Bermudez to serve 364 days in jail, which he had already completed at the time of the court’s order.

1 All further statutory references are to the Penal Code.

1

The trial court also awarded restitution to Bermudez’s victims. Although Bermudez did not dispute the amount of restitution sought for three of his four victims, he challenged the amount sought for his fourth victim, Thomas R. He argued that it was improper for the court to calculate the amount of Thomas R.’s restitution by using an appraised value of the home Thomas R. lost through foreclosure rather than by using the amount of the mortgages Bermudez induced Thomas R. to assume. B. Victim Thomas R. Thomas R. was 59 or 60 years old when he was victimized by Bermudez. According to an evaluating psychologist, Thomas R. has “borderline intellectual functioning,” which means that he has a below-average IQ but functions higher than if he were “mentally retarded.” Thomas R. lived in a house in Daly City given to him by his father. The house was mortgage free. Thomas R. paid for his living expenses by working as a singer and photographer. Sometime in the spring of 2006, Bermudez met Thomas R. by chance at a barbershop. After overhearing Thomas R. mention a desire for a remodeling loan, Bermudez introduced himself and said he was in the real estate business. Thomas R. told Bermudez he wanted $10,000 to $15,000 to remodel his kitchen. On Bermudez’s invitation, Thomas R. later met Bermudez at his office. At the office, Bermudez proposed a loan substantially higher than $10,000 to $15,000. Bermudez further suggested that they go into business together in real estate ventures and a limousine service. So began a series of loans eventually totaling $550,000 that largely benefited Bermudez but were secured by Thomas R.’s house. The first loan was a bank loan in July 2006 for $200,000 (the first loan). The application in connection with that loan stated that the property was worth $700,000. An appraisal prepared shortly after the loan closed valued the property at $650,000. In November 2006, the bank increased its loan by an additional $150,000 (the second loan). And a few months later, Bermudez arranged a third loan for $200,000 from a private investor (the third loan). According to