People v. Topasna

Opinion

1 IN THE SUPERIOR COURT OF GUAM 2 THE PEOPLE OF GUAM, ) Criminal Case No. C~g-,U8! 7 /:; 10: 15 3 ) ) 4 v. ) DECISION AND oR:Dta;< 0 Feu R T ) re: Motion for Inclusion of Interest 5 ) in Restitution Order ALBERTS. TOPASNA, ) 6 ) Defendant. ) 7 ) 8 INTRODUCTION 9 This matter came before the Honorable Michael J. Bordallo on November 4, 2011 for a 10 motion for inclusion of interest in a restitution order. The People are represented by Assistant 11 Attorney General David Rivera. Defendant was represented by Attorney Stephanie Flores. After 12

13 considering the matter presented, the court now issues the following decision and order denying the

14 People's motion for inclusion of interest in restitution order.

16 On May 13,2010, Defendant was convicted of Theft by Deception (As a Second Degree

17 Felony). At his sentencing hearing, the court ordered that Defendant pay $12,500.00 be paid in 18 restitution. The amount represented the amount of money paid by the victim to the Defendant for the 19 real property that was the subject of his conviction. The victim now requests that the court include 20 $4,497.50, which is the mount of interest he paid on the bank loan he took out to pay the $12,500.00, 21 in the restitution order. I 22 DISCUSSION 23 The court has jurisdiction over the matter pursuant to 7 GCA §31 05. The issue before the 24 court is the amount the Defendant is liable for regarding the sale of real property to the victim. More 25 specifically, whether the court will include the $4,497.50 in interest to the restitution order. The plea 26 27 I The court notes that the instant motion was filed before the Defendant passed 28 away on September 27,2011 and argued after his death. 1 agreement states that "Defendant shall pay restitution in the amount of $12,500.00. The issue of 2 interest will be separately decided." 3 A defendant who has been convicted of an offense may be ordered to pay restitution for 4

5 property shown to be lost as long as the restitution does not exceed the victim's loss in that offense.

6 9 G.C.A. § 80.50; see Us. v. Miguel, 49 F.3d 505, 508 (9 th Cir. 1995); see also us. v. Tyler, 767

7 F.2d 1350, 1351 (9th Cir. 1985)("[R]estitution is proper only for losses directly resulting from the

8 defendant's offense."). The Government must prove the victim's loss by a preponderance of the

9 evidence before the court will order any restitution. Us. v. Riley, 335 F.3d 919, 929 (9 th Cir. 2003).

10 Under Title 9 G.C.A. §80.50(e), the court must make a finding as to the amount of gain or loss 11 caused by the Defendant's actions. Under this statute, "gain" refers to the amount of money or value 12 derived from the property by the offender. "Loss" means the amount of money or value of property 13 separated from the victim as a direct result of the actions of the offender. 14 With regards to the victim's loss, the People seek to hold Defendant liable for an extra 15 $4,497.50 in restitution. The court disagrees with the People that the interest paid by the victim is 16 an out of pocket expense that directly relates to the Defendant's criminal conduct. The amount of 17 money separated from the victim as a direct result of the Defendant's actions was $12,500.00. 18

19 CONCLUSION

20 For these reasons, the court DENIES the People's Motion for Inclusion of Interest in 21 Restitution Order. 22 SO ORDERED, this 17th day of February 2012. 23

24 1 do 1111>TeCy certify that tt~ fofegolng I... fuil true "nd correct copy of Ihll 25 orlglrn<1 00 me In ii1e offic" of ttHt clMll of the Superior Court of Gwlm. PalMd at Hag8l-fla. GIl~m 26 27

28 ames R. Borja - 2-