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People v. Wickham

California Court of Appeal, Fourth District, Second Division

December 17, 2013

The PEOPLE, Plaintiff and Respondent,
v.
Gary WICKHAM, Defendant and Appellant.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

 APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed. (Super.Ct.No. SWF10000375).

Page 233

COUNSEL

David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia, Peter Quon, Jr., and Linh Lam, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P.J.

Page 234

Defendant challenges the more than $133,000 the trial court ordered him to pay to his elderly victim after defendant pled guilty to one count of theft by false pretenses (Pen.Code, ยง 532, subd. (a)) [1] in exchange [165 Cal.Rptr.3d 507] for a sixteen-month prison sentence. Defendant contends the court abused its discretion when it: 1) failed to state on the record the factual basis for and calculation of the restitution amount; 2) overstated the amount the victim lent to defendant; 3) understated the amount defendant repaid to the victim; and 4) allowed the victim to recover interest on loans that violate California usury laws. As discussed below, we reject each of these arguments and affirm the restitution order.

FACTS AND PROCEDURE

Defendant met the elderly [2] victim, Mr. Griffin, through a mutual acquaintance in early 2007. Thereafter began a series of transactions in which Mr. Griffin would lend defendant money for various schemes. Defendant repaid some of the money, but not all, and did not keep accurate records. Mr. Griffin testified at the restitution hearing that he would return a promissory note to defendant when defendant repaid it. Mr. Griffin provided copies of eight unpaid promissory notes, along with bank records of checks written to him by defendant that were received, dishonored, and, according to Mr. Griffin, contained his forged endorsement. Defendant also testified and produced copies of cancelled checks purporting to show amounts he repaid to Mr. Griffin. From this testimony and these records, the trial court ultimately determined the restitution award that defendant challenges.

In January 2007, Mr. Griffin lent defendant $6,250 " to buy a gold deal out of Mexico." Mr. Griffin lent defendant another $6,250 for the same purpose in November of that year. Both loans were secured by promissory notes

Page 235

stating an interest rate of 12.9 percent. According to Mr. Griffin's testimony ...


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