People v. Rahbari

• Decision Date: 10 December 2014
• Docket Number: A139464
• Citation: 181 Cal.Rptr.3d 220,232 Cal.App.4th 185
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Manuchehr RAHBARI, Defendant and Appellant.

232 Cal.App.4th 185

181 Cal.Rptr.3d 220

The PEOPLE, Plaintiff and Respondent

v.Manuchehr RAHBARI, Defendant and Appellant.

A139464

Court of Appeal, First District, Division 5, California.

Filed December 10, 2014

Amos Lawrence, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Eric D. Share and Luke Fadem, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

SIMONS, J.

Appellant Manuchehr Rahbari was convicted of passing checks with insufficient funds. He was sentenced, pursuant to Penal Code section 1170, subdivision (h) (section 1170(h) ),¹ to a term in county jail followed by mandatory supervision. The trial court also ordered appellant to pay restitution to certain victims. In the published portion of our opinion, we conclude that the scope of a victim restitution order issued in connection with a sentence pursuant to section 1170(h) is limited to those losses caused by the crime or crimes of which the defendant was convicted. In the unpublished portion of our opinion, we address the remainder of appellant's claims.

BACKGROUND

In March 1985, appellant was charged by complaint with 26 counts of passing checks with insufficient funds (§ 476a, subd. (a))² and one count of grand theft (§ 487). Appellant was not arrested on these charges until 2012.

At a June 2013 bench trial, the evidence was as follows. In 1980 or 1981, appellant and Andy Saberi jointly owned gasoline stations. For one of their stations, appellant and Saberi held a joint bank account at Security Pacific National Bank (the SPNB account). Appellant was responsible for the day-to-day management of this station and had access to the SPNB account checkbook approximately 99 percent of the time. The average balance in the SPNB account was $20,000 to $30,000.

For two of appellant and Saberi's other stations, Roger Allen held a nominal 1 percent interest. Because the gasoline supplier would only accept payments from Allen in connection with these stations, appellant and Allen held a joint business account at Bank of America (the BOA account). Allen signed checks to the supplier but otherwise had no involvement in the stations or with the BOA account.

In March 1984, 26 checks from the SPNB account—dated on four consecutive days, signed by appellant, and made out to “cash”—were deposited into the BOA account. The checks totaled approximately $235,000. No single check exceeded $10,000; at the time, banks were required to report checks over $10,000 to the government. Appellant admitted the endorsement signatures on the back of the checks “look[ ] like mine” but denied endorsing the checks.

John Roth, a Bank of America investigator in the 1980s who was familiar with Bank of America's business practices at that time, testified that when a check was deposited into a Bank of America account, Bank of America sent the check to the drawee bank. While the check was being processed by the drawee bank, Bank of America might credit the account in the amount of the check, depending on the customer's creditworthiness. If the drawee bank returned the check to Bank of America instead of paying it, Bank of America debited any amount credited to the Bank of America account and sent the account holder a form notice, called a return item advice letter.

Roth reviewed the various stamps and markings on the 26 checks from the SPNB account and associated return item advice letters. Based on this review, he confirmed that Bank of America had sent these checks to Security Pacific National Bank and subsequently received the returned checks stamped with the notation “NSF S.P.N.B.” Roth testified that NSF stood for nonsufficient funds. Subsequently, Saberi and Allen were contacted by their respective banks regarding insufficient checks and both attempted, unsuccessfully, to locate appellant. Neither Saberi nor Allen saw or heard from appellant again until after his arrest. Saberi and Allen were held liable for overdrafts on the SPNB account and BOA account, respectively.

An expert in check-kiting testified this conduct was consistent with “a classic case of basic check-kiting,” whereby “a person having two checking accounts for two separate banks, tak[es] checks from one bank knowing there's non-sufficient funds to back those checks, deposit[s] them into their other banking account over a ... very short period of time, several days, high-dollar amount checks, then make[s] cash withdrawals based off those deposits before the bank catches on.”

Appellant testified in his own defense that he was the sole owner of the station linked to the SPNB account and the sole owner of the BOA account. Appellant also testified that in January 1984, he went to Iran to be with his sick mother. Although he intended to spend only 15 days in Iran, he was prevented from returning until 1986 because he did not have a passport. Prior to his departure, he asked a friend, Manu Hashemi, to manage the stations in his absence. He made out the SPNB account checks to “cash,” postdated them for March even though he expected to be back by then, and left them with Hashemi to cover gasoline deliveries.

The trial court acquitted appellant on the grand theft charge but found him guilty of the 26 counts of passing checks with insufficient funds. He was sentenced pursuant to section 1170(h) to a term of one year in county jail followed by three years' mandatory supervision.

DISCUSSION

I.–III.^**

IV. Sentence

A. Section 654^**

B. Victim Restitution

Saberi and Allen submitted written statements of their losses, which were attached to the probation report. Saberi claimed a loss of $45,000 from “kited checks that I had to pay as guarantor,” explaining, “I got a call from our bank that our account was overdrawn $45,000.” Allen claimed that, in 1988, Bank of America sued him for $232,000; the parties eventually settled for $36,000; in 1989, Allen borrowed the funds to pay Bank of America; and he subsequently had to sell his house to pay off the loan. In addition to the $36,000 payment to Bank of America, he incurred losses retaining an attorney to represent him in the lawsuit, paying interest on the loan, and paying Realtor fees in connection with the sale of his house. Allen also claimed appellant “left a bad debt with Shell Oil Company in the amount of approximately $8,000. Since my name was on the lease, Shell Oil held me responsible. I settled the debt with Shell Oil for approximately $4,000.” The trial court ordered appellant to pay restitution for all of the above losses: $45,000 to Saberi and $55,300 to Allen, plus 10 percent interest accruing from 1984.

1. Appellant did not forfeit his challenges to the restitution order^***

2. Section 1202.4 limits the scope of the allowable victim restitution

Appellant first argues the losses were not caused by the crimes he was convicted of. The scope of the trial court's authority with respect to victim restitution depends on whether the restitution is ordered pursuant to section 1202.4 or as a condition of probation pursuant to section 1203.1. “[U]nder section 1203.1, ‘California courts have long interpreted the trial courts' discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction.’ ” (People v. Anderson (2010) 50 Cal.4th 19, 27, [112 Cal.Rptr.3d 685, 235 P.3d 11].) In contrast, section 1202.4 provides: “It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime. ” (§ 1202.4, subd. (a)(1), italics added.) Accordingly, “when a court imposes a prison sentence following trial, section 1202.4 limits the scope of victim restitution to losses caused by the criminal conduct for which the defendant sustained the conviction.” (People v. Woods (2008) 161 Cal.App.4th 1045, 1050, (Woods ).) As our Supreme Court has explained: “When section 1202.4 imposes its mandatory requirements in favor of a victim's right to restitution, the statute is explicit and narrow. When section 1203.1 provides the court with discretion to achieve a defendant's reformation, its ambit is necessarily broader, allowing a sentencing court the flexibility to encourage a defendant's reformation as the circumstances of his or her case require.” (Anderson, supra, 50 Cal.4th at p. 29, 112 Cal.Rptr.3d 685, 235 P.3d 11.)

Appellant was sentenced to neither state prison nor probation. We are therefore faced with an issue of first impression: when a defendant is sentenced to county jail followed by mandatory supervision (known as a “split sentence”), is a victim restitution order issued pursuant to section 1202.4 or is it akin to a probation condition? (See Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2014) § 11:31, p. 11–44 (rel. 5/2014) [“It is not clear from the realignment legislation that a sentence to county jail under [section 1170(h) ], will be the equivalent of a state prison sentence for the purpose of victim restitution under section 1202.4.”].) In response to our request for supplemental briefing on this issue, the parties split along predictable lines.

“ ‘Our fundamental task in interpreting a statute is to determine the Legislature's intent so as to effectuate the law's purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one...