As Judge Edward Allard III announced the terms of the sentencing for former redevelopment officials Carolyn Y. Smith and Dante Dayacap on Friday, a small smile formed at the side of Dayacap’s mouth.
As Allard waded into a lengthy sentencing speech, it quickly became clear he was forgoing jail time for what he said was a hefty restitution payment: $435,000. But then the judge slipped in a little detail: That restitution would be paid back in $100-a-month increments by the two admitted felons.
At that rate, if the 62-year-old Dayacap and 54-year-old Smith each live to 100, they’ll repay the city just $100,000 between them, a quarter of what they’ve been ordered to reimburse. The full amount wouldn’t be repaid unless both of them live until the year 2193.
The true extent to which the two felons are punished financially now depends largely on the actions of the city of San Diego. As the victim, the cash-strapped city can try to recoup the $435,000 of taxpayer money that Smith and Dayacap have been ordered to repay. Or it can do nothing.
If the city doesn’t act, the two former officials will likely not even have to pay $100 a month for the rest of their lives, said Paul Pfingst, a former district attorney who’s now a defense lawyer. Convicted criminals often only have to pay restitution while they’re on probation, Pfingst said.
Smith and Dayacap are on probation for five years. If they only paid restitution for that time, the city would recoup just $12,000 of the almost $700,000 that the two paid themselves and other employees as part of their clandestine bonus scheme.
The city didn’t have any say in determining the rate at which it will be repaid the money it’s owed. That was set by the judge, and it’s unclear how Allard came to the $100-a-month figure. Judges often get guidance for how much a defendant must pay in restitution from a report written by the defendant’s probation officer.
In the run-up to sentencing, a probation officer typically conducts a financial investigation and concludes how much income, savings and assets the defendant has, said Mack Jenkins, chief probation officer for the county of San Diego. From that investigation, the probation officer reports how much the defendant can pay each month. We haven’t yet obtained a copy of that report, but in his statement, Allard said he had read it closely when deciding how to sentence the defendants.
If it wants to get more than $100 a month, the city essentially has two options:
• It can do its own investigation into how much it thinks Smith and Dayacap can pay. If it concludes they can pay more than $100 a month, the city can make its case to the court. A judge can then alter the terms of the restitution agreement.
• The city can sue Dayacap and Smith in civil court. The city could also try to go after any assets the two defendants hold, like property or vehicles. The city would still have to prove it is owed money by the defendants, but that would be made much easier considering the criminal judgment against them, said L. Paul Sutton, a criminal justice professor at San Diego State University.
Dayacap has struggled with his finances previously. He has filed for bankruptcy three times. Both he and Smith lost their jobs in 2008 and claim they have not been working since.
But situations change. Either defendant might inherit money. They could get a well-paid job, or win the lottery. If that happens, it would be up to the city to proactively pounce on any new income stream Dayacap or Smith taps into.
“The message to the city is to stay on top of it,” Pfingst said. “A proactive victim is much more likely to succeed in getting restitution than someone who is passive.”
San Diego City Attorney Jan Goldsmith was not available for comment Friday.
Will Carless is an investigative reporter at voiceofsandiego.org. You can contact him directly at email@example.com or 619.550.5670.
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