Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC815266
ELIA, J.Appellant William Maida appeals from the denial of his motion to modify a victim restitution order. For reasons that follow, we affirm the order.
Appellant was charged by felony complaint with one count of check forgery (Pen. Code, § 470, subd. (d)), committed on December 20, 2007. Pursuant to a negotiated disposition, appellant entered a no contest plea and executed a written waiver of his rights.
On February 13, 2009, the court suspended imposition of sentence and placed appellant on three years formal probation. The court ordered victim restitution in the amount of $4,219. Thereafter, appellant contested the victim restitution order. At a formal restitution hearing, held on June 15, 2009, the court found that the amount of restitution owed the victim was $4,224. Accordingly, the court denied appellant's motion to reduce the restitution amount and set restitution at $4224 ($4219, the amount of the check plus the $5 check fee). Appellant filed a notice of appeal.
Facts
We recite the facts relevant to the specific item of restitution that is the subject of appellant's appeal, which are taken from the restitution hearing.
Appellant had been Guhshinder Tumber's boss in the late 1980's when they worked at the same company. Later, in 2005 or 2006, Tumber loaned appellant $15,000 for a business venture. The loan was supposed to be paid back in six months, but appellant never repaid the loan.
Tumber is a half-owner of Seven Plus Market (the market), a corporation. Tumber's brother is the other half-owner of the market. On December 20, 2007, one of the market's employees called Tumber to inform him that appellant wanted to cash a $4,219 check. Initially, Tumber declined to authorize the check cashing because the check was "too big." Then, Tumber talked to appellant. Appellant offered to pay Tumber $3000 from the check as payment for part of the $15,000 that appellant owed Tumber if the market would cash the check. With that understanding, the market cashed the check and gave appellant only "$1200" in return, with Tumber placing the remaining $3000 in the safe.
Tumber and the court order identified the amount of the check as being $4,219. Occasionally, the court and counsel quoted slightly different amounts. We assume that this was the result of rounding up or rounding down.
Two weeks later, when Tumber learned the check was "bad," Tumber put the $3000 that he was given by appellant from the check back into the market's business account. The market's bank took back from the store the entire $4,219 plus a $5 additional charge.
Tumber testified that he put the money back because if he "took the money [he was] the same thing like" appellant. He would be "stealing money from... [the] store."
Discussion
Appellant contends that the trial court abused its discretion when it awarded Tumber $4,224 in victim restitution. Appellant asserts that since the economic loss to the victim was only $1,224, in assessing victim restitution at $4,224, the trial court did not use a rational method to calculate the victim's loss. We disagree.
"Our constitution provides that 'It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.' (Cal. Const., art. I, § 28, subd. (b).) The Legislature has affirmed this intent, providing in Penal Code section 1202.4, subdivision (a)(1), that a 'victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.' " (People v. Woods (2008) 161 Cal.App.4th 1045, 1049 (Woods).)
"Courts have interpreted section 1202.4 as limiting restitution awards to those losses arising out of the criminal activity that formed the basis of the conviction. 'Subdivision (a)(3)(B) of section 1202.4 requires the court to order "the defendant"--meaning the defendant described in subdivision (a)(1), who was "convicted of that crime" resulting in the loss--to pay "[r]estitution to the victim or victims, if any, in accordance with subdivision (f)." Subdivision (f) of section 1202.4 provides that "in every case in which a victim has suffered economic loss as a result of the defendant's criminal conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court." (Italics added.) Construed in light of subdivision (a)(1) and (3)(B), the term "criminal conduct" as used in subdivision (f) means the criminal conduct for which the defendant has been convicted.' [Citation.]" (Woods, supra, 161 Cal.App.4th at p. 1049.)
However, in the context of grants of probation, this limitation does not apply. "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. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation]." (People v. Carbajal(1995) 10 Cal.4th 1114, 1121.) " 'A victim's restitution right is to be broadly and liberally construed.' [Citation.]" (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)
We review the trial court's restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano).) A restitution order that is based on a demonstrable error of law constitutes an abuse of the trial court's discretion. (People v. Jennings (2005) 128 Cal.App.4th 42, 49.) However, "[w]hen there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." (People v. Dalvito (1997) 56 Cal.App.4th 557, 562 (Dalvito).)
At the outset, we note that it is not at all clear whether the award of $4,224 in victim restitution was a condition of probation. It appears as one of the probation officer's recommendations, but does not appear under the section entitled "CONDITIONS." However, when the court made a record of the negotiated disposition, the court stated that a settlement had been reached "with the exception of this possible restitution issue." Thereafter, the court suspended imposition of sentence and placed appellant on formal probation for three years. As to the probation grant, the court ordered "credit for time served" and ordered appellant to pay victim restitution "in the amount of $4,219 to Seven Plus Market, care of Guhshinder Tumber." Thus, it appears to this court that victim restitution was a condition of probation.
That being so, subdivisions (a)(3) and (j) of Penal Code section 1203.1 grant a trial court broad discretion in imposing terms of probation, and a trial court's discretion to order restitution is broader when restitution is imposed as a condition of probation. (Giordano, supra, 42 Cal.4th at p. 663, fn. 7.) Nevertheless, even if the restitution order was not a condition of probation, we would find that the amount of the order was exactly the economic loss that the market suffered as a direct result of appellant's criminal conduct.
As the Giordano court explained, " '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality...." ' ([People v.] Lent [(1975)] 15 Cal.3d. [481] 486....) With respect to the third criterion, 'an order for restitution, i.e. attempting to make a victim whole, has generally been deemed a deterrent to future criminality [citation], and the court is not limited to transactions or amounts of which defendant is actually convicted [citations].' (Ibid.) Probationary restitution may be imposed even if a defendant has not been convicted for a particular offense 'because probation is an " ' " act of clemency and grace," ' " not a matter of right. [Citation.] "[T]he granting of probation is not a right but a privilege, and if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[,] he is free to refuse probation." [Citations.] Because a defendant has no right to probation, the trial court can impose probation conditions that it could not otherwise impose, so long as the conditions are not invalid under the three Lent criteria.' [Citation.]" (Giordano, supra, 42 Cal.4th at p. 663, fn. 7.)
In Dalvito, supra, 56 Cal.App.4th 557 , the defendant stole a necklace from a jewelry dealer, who had purchased the necklace from a wholesaler on the defendant's behalf. After the dealer stopped payment on his check for the purchase price, the wholesaler sued and obtained a judgment against the dealer for the amount of the check. The dealer later declared bankruptcy and this judgment against him was discharged. (Id.at p. 559.) Later, the defendant pleaded guilty to theft, and the court ordered him to pay restitution to the dealer for the stolen necklace. (Ibid.) On appeal, the defendant argued the dealer had suffered no true loss because the debt he incurred for purchasing the necklace was discharged in bankruptcy. (Id. at p. 560.) The appellate court rejected this argument, noting the dealer clearly suffered an economic loss when the defendant stole the necklace from him and observing "[w]hatever actions were taken by the victim of defendant's crime in civil courts in order to mitigate the damage caused by defendant cannot be a subject for our interference." (Id.at p. 561.) Similarly here, whatever Tumber did to mitigate the damages to the market cannot be a subject for our interference.
We agree with the court's statement in Dalvitothat a "[d]efendant's obligation to make restitution should not be predicated on whether a victim has sought relief" (Dalvito, supra, at p. 561) elsewhere. " 'While restitution serves the obvious function of compensating crime victims, its primary goal is the rehabilitation of the criminal. [Citations.]' [Citation.]" (People v. Tucker (1995) 37 Cal.App.4th 1, 5.) In effect what happened here is that appellant received $4219, but immediately gave $3000 back to Tumber in his capacity as the lender on appellant's $15,000 loan. Conceivably, Tumber could have kept the $3000 from the cashed check, but his failure so to do does not absolve appellant of his obligation to pay criminal restitution for the amount of the check he cashed plus bank charges, even though appellant personally received only $1200. The restitution amount was directly related to the crime of which appellant was convicted, and the trial court did not abuse its discretion in setting the restitution order at $4,224.
Disposition
The order imposing restitution in the amount of $4,224 is affirmed.
WE CONCUR: RUSHING, P. J., DUFFY, J.