Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. GA077179 Terry Lee Smerling, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Simone Davenport appeals from the restitution order imposed following her no contest plea to one count of grand theft of personal property, in violation of Penal Code section 487, subdivision (a). The trial court reduced the charge to a misdemeanor, suspended imposition of sentence, and placed appellant on three years of summary probation. Following a restitution hearing, the court ordered appellant to pay $1,478.93 to Wescom Credit Union (Wescom) and $3,955.92 to Meiko America, Inc. (Meiko). Appellant challenges the restitution order as to Meiko. We affirm.
All further statutory references are to the Penal Code.
Appellant is not required to have obtained a certificate of probable cause because she challenges only the restitution order, which was issued after she pled guilty, and does not challenge the validity of the plea. (See § 1237.5; People v. French (2008) 43 Cal.4th 36, 45 [“the certificate requirement does not apply when the defendant ‘assert[s] only that errors occurred in the... adversary hearings conducted by the trial court for the purpose of determining the degree of the crime and the penalty to be imposed.’ [Citation.]”].)
FACTUAL AND PROCEDURAL SUMMARY
In February 2009, appellant and codefendant Morgan Moten deposited a counterfeit check for $3,876.87 in appellant’s bank account at Wescom. The check was purportedly from Meiko, which is a freight forwarding company. Moten then used appellant’s debit card to purchase three money orders worth $1,481.38 at Walmart. Appellant falsely reported to the Los Angeles County Sheriff’s Department that an unknown person deposited a check for $3,876.87 into her bank account and then used her debit card to make transactions of $3,005.62.
Because appellant pled no contest before a preliminary hearing was held, the facts are taken from the probation report and the transcript of the restitution hearing.
Wescom called Meiko to ask if it issued a check for $3,876.87, but Meiko replied that the check was fraudulent, stating that the check number of the fraudulent check corresponded to a check it had written in a different amount to a different payee. Meiko also noted that the fraudulent check bore a different logo and design from its checks. Meiko did not bank at Wescom. After learning about the fraudulent check, Meiko decided to open a new bank account at its bank.
Marilou Gerana, an accountant who worked for Meiko, testified at the restitution hearing that Meiko determined the check was fraudulent on February 10, 2009, opened a new account in March or April 2009, and closed the old account at the end of June. Meiko needed to maintain both accounts during the transition while it waited to obtain new checks. Gerana testified that the monthly fee for Meiko’s bank account was $1,189.44.
Gerana explained that Meiko needed to collect the checks for the old account from its seven offices, destroy some and store others, and order new checks. Meiko incurred expenses of $1,972.65 for maintaining two accounts during the transition, $1,589.35 for check reordering, $193.92 in courier costs, and administrative fees of $200.
Appellant was charged by felony complaint with grand theft of personal property from Meiko, in violation of section 487, subdivision (a). She entered a not guilty plea.
At a hearing on August 6, 2009, the court indicated that it would reduce the charge to a misdemeanor if appellant would plead to the charge, stating that the court thought the amount of loss was less than $1,000 and that appellant did not have a criminal record. The court explained appellant’s rights to her, and appellant acknowledged that she understood her rights and waived them. The parties stipulated to a factual basis based on the police report. Appellant entered a no contest plea. The trial court determined that the plea was knowing, intelligent, free, and voluntary, and that there was a factual basis for the plea. The court accepted the plea and found appellant guilty. The court suspended imposition of sentence and placed appellant on three years of summary probation on the condition that she serve one day in county jail, with credit for one day served, and that she perform 30 days of Caltrans work. The court retained jurisdiction over the issue of restitution and set a hearing date.
Gerana testified at the restitution hearing as set forth above. The prosecution also introduced photographs of an authentic Meiko check and the fraudulent check, and a summary of costs from Meiko.
Defense counsel argued that Meiko’s decision to close the old account and open a new one was not a result of appellant’s crime. The court disagreed, reasoning that Meiko knew the old account had been compromised because someone had created a fraudulent check with Meiko’s account number and the correct check sequence number. The court also rejected defense counsel’s argument that Meiko’s new account was equally vulnerable, stating that there was no indication that a criminal had the new account number. The court concluded that “someone who commits a forgery takes the risk of being held liable for steps like these taken by a victim, ” and granted restitution in the amount requested by Meiko. The court further reasoned that, “You commit a forgery, you’re doing so understanding that you’re going to create fear in a victim that this might happen again. I think a lot of individuals might close their checking accounts with one bad check. Maybe not everybody would do that, but some might.” The court thus ordered appellant to make restitution to Meiko in the amount of $3,955.92, pursuant to section 1202.4, subdivision (f). Appellant filed a timely notice of appeal.
DISCUSSION
Section 1202.4, subdivision (f) provides that, “in every case in which a victim has suffered economic loss as a result of the defendant’s 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.” The statute requires the court to order full restitution “unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 1202.4, subd. (f); see People v. Short (2008) 160 Cal.App.4th 899, 902.) To be entitled to restitution, Meiko “must have (1) suffered an economic loss, and (2) be considered a ‘direct victim’ under the statute.” (People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1082 (Saint-Amans).) Appellant does not challenge the finding that Meiko suffered an economic loss.
“The standard of review of a restitution order is abuse of discretion, but ‘a restitution order “resting upon a ‘“demonstrable error of law”’ constitutes an abuse of the court’s discretion.”’ [Citations.]” (People v. Duong (2010) 180 Cal.App.4th 1533, 1537.) “We will affirm the lower court’s determination of restitution provided we find a factual or rational basis for the amount ordered. [Citation.]” (People v. Kelly (2010) 189 Cal.App.4th 73, 77 (Kelly).) In determining whether Meiko is entitled to restitution, we note that “the courts have held that restitution statutes should be interpreted broadly and liberally. [Citations.]” (Saint-Amans, supra, 131 Cal.App.4th at p. 1084.)
Appellant contends that the restitution order should be vacated for three reasons. First, appellant argues that Meiko was not the direct victim of her crime. Second, she contends that Meiko’s losses were the result of its independent business decisions, not her crime, and thus were outside the scope of section 1202.4, subdivision (f)(3)(J). Third, appellant contends that the trial court erroneously ordered restitution based on the crime of forgery, rather than theft. We disagree with appellant on all three counts.
I. Direct Victim
Appellant contends that restitution was inappropriate because Meiko was not the direct victim of her crime. Section 1202.4, subdivision (k)(2) provides that a corporation or other commercial entity is a victim entitled to restitution when the entity “is a direct victim of a crime.” Meiko is a direct victim if it was the immediate object of appellant’s offense. (People v. Birkett (1999) 21 Cal.4th 226, 233 (Birkett); People v. Slattery (2008) 167 Cal.App.4th 1091, 1095 (Slattery).) “The state high court has defined ‘direct’ as: ‘“straightforward, uninterrupted, [or] immediate” in time, order or succession, or “proceeding [in logic] from antecedent to consequent, from cause to effect, etc., uninterrupted, ” or generally “[e]ffected or existing without intermediation or intervening agency; immediate.” [Citation.]....’ [Citation.]” (Slattery, supra, 167 Cal.App.4th at pp. 1095-1096.) Whether Meiko is a “direct victim” is a legal question, subject to de novo review. (Saint-Amans, supra, 131 Cal.App.4th at p. 1084.)
Meiko was the immediate object of appellant’s offense. The check that appellant used to commit the offense was purportedly issued by Meiko, and if appellant had been successful, the funds would have been taken from Meiko’s bank account. The effect on Meiko would have been immediate, and the fact that appellant’s theft was thwarted does not change the conclusion that Meiko was the immediate object of the attempted theft.
Appellant’s reliance on Birkett is unavailing. In Birkett, the California Supreme Court held that insurers who partially reimbursed direct victims of auto thefts were not entitled to restitution because they were not the direct objects of the crime. (Birkett, supra, 21 Cal.4th at pp. 245-246.) Unlike Burkett, in which the insurer merely reimbursed the direct victims of the auto thefts, Meiko was the direct target of appellant’s criminal conduct because the fraudulent check named Meiko as the payor. We therefore reject appellant’s contention that Meiko was not entitled to restitution as a direct victim of her offense.
II. Independent Business Decision
Appellant’s second argument is that Meiko’s decision to close its former checking account and open a new one was a business decision independent of her crime, stating that Meiko’s losses were outside the scope of section 1202.4, subdivision (f)(3)(J). Section 1202.4, subdivision (f)(3) sets forth a nonexhaustive list of economic losses for which victims can receive restitution. Subdivision (f)(3)(J) addresses security precautions taken by a homeowner after a violent felony and states that economic loss incurred by a victim as a result of a defendant’s criminal conduct includes, but is not limited to “[e]xpenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks.” Appellant contends that Meiko’s losses were not rationally related to her crime, stating that the trial court found that Meiko’s actions were independent business decisions. We disagree.
The trial court finding relied upon by appellant was in response to defense counsel’s argument that a crime victim can spend money for home security, but the offense must be a violent felony pursuant to section 1202.4, subdivision (f)(3)(J). Defense counsel asked the court “to find that this was an independent act by MEIKO America, that it doesn’t fall under a violent felony exception, ” and the court replied, “I’ll make that finding.” Reading the trial court’s statement in context, it is clear that what the trial court found was that Meiko’s losses did not fall under subdivision (f)(3)(J) as a homeowner response to a violent felony. This finding is supported by the record and does not require the restitution order to be vacated.
Subdivision (f)(3)(J) of section 1202.4 does not pertain to appellant’s conduct or to the losses sustained by Meiko as a result of appellant’s conduct. The subdivision specifically states that the list of the types of losses for which a victim can receive restitution is not exhaustive. (See § 1202.4, subd. (f)(3) [stating that the restitution order “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but not limited to, all of the following...”], italics added.) The fact that Meiko’s losses did not fall under subdivision (f)(3)(J) does not preclude the finding that Meiko incurred economic loss due to appellant’s criminal conduct.
Meiko incurred expenses because it closed a bank account whose security had been compromised and opened a new account. These expenses are rationally related to appellant’s offense because it was her conduct in committing the offense that compromised the security of Meiko’s bank account. We therefore reject appellant’s second contention.
III. Forgery or Theft
Appellant’s third contention is that the restitution order should be vacated because the trial court ordered restitution based on the crime of forgery, rather than the crime of theft, which was her conviction offense. She contends that she did not enter a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey) when she pled to theft, and that the court accordingly could not rely on facts relevant to the crime of forgery in ordering restitution. We disagree with appellant.
Harvey provides that, “when under a plea agreement a defendant pleads guilty to one or more charges in exchange for dismissal of one or more charges, the trial court cannot, in placing the defendant on probation, impose conditions that are based solely on the dismissed charge or charges unless the defendant agreed to them or unless there is a ‘transactional’ relationship between the charge or charges to which the defendant pled and the facts of the dismissed charge or charges. [Citation.]” (People v. Martin (2010) 51 Cal.4th 75, 82.)
Harvey is inapplicable because appellant’s case does not involve a dismissed forgery charge. Rather, appellant’s crime of theft was accomplished by use of a forged check. Even if Harvey did apply, there is a transactional relationship between appellant’s crime of theft and the forgery conduct because the fraudulent check was the means by which appellant attempted to commit the theft.
Appellant contends that her case is similar to People v. Lai (2006) 138 Cal.App.4th 1227 (Lai), in which the defendant was ordered to pay restitution for numerous fraudulent welfare claims. Part of the restitution order was based on fraudulent claims that were made several years before the charged crimes and the crimes of which the defendant was convicted. This court held that “when a defendant is sentenced to state prison, section 1202.4 limits restitution to losses caused by the criminal conduct for which the defendant was convicted, ” and that section 1202.4 accordingly did not support the portion of the restitution order attributable to fraudulent claims before the charged period. (Id. at p. 1249.)
Lai is inapposite. The restitution order in Lai was based on conduct that occurred before the crimes with which the defendant was charged. Here, appellant’s conduct of forging a check was the very conduct by which she committed the crime to which she pled. “[S]ection 1202.4 requires a defendant to pay restitution for losses resulting from the criminal conduct supporting the crimes of which the defendant was convicted.” (Lai, supra, 138 Cal.App.4th at p. 1247.) Appellant’s conduct of forging Meiko’s check supports the crime of which she was convicted.
For all the foregoing reasons, we reject appellant’s contention that the restitution order should be vacated. We conclude that the restitution order is supported by both a factual and a rational basis and therefore affirm. (See Kelly, supra, 189 Cal.App.4th at p. 77.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.