Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC762507
McAdams, J.
Defendant John Vallejo was convicted by jury of one count of grand theft from his employer (Pen. Code, §§ 484-487, subd. (b)(3)) and one count of second degree burglary (§§ 459-460, subd. (b)). The court suspended imposition of sentence and granted probation subject to various conditions, including the condition that defendant serve six months in county jail. The court also ordered defendant to pay $2,011.48 in victim restitution to his employer, Starbucks Coffee (Starbucks), and attorney fees of $750 to the county for his defense.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends that his conviction for grand theft must be reversed because there was insufficient evidence that he stole in excess of $400 from his employer. Defendant argues that the court erred in admitting a computer summary of cash register activity in the store on the grounds that it was inadmissible hearsay. He also asserts that if the summary is a printout reflecting the computer’s internal operations, then the court erred in admitting it without proper foundation and that his counsel was ineffective for failing to object on foundational grounds. Defendant contends that there was insufficient evidence to support the victim restitution order and the attorney fees order. We conclude that there was insufficient evidence to support the attorney fees order and strike that order. We find no other error and affirm the order granting probation as so modified.
Facts
Prosecution Case
Defendant was employed by the Starbucks store at Coleman Avenue and Taylor Street in San Jose. The store opened in May 2006.
Testimony of Alfonso Magdaleno
Alfonso Magdaleno, defendant’s store manager, testified that Starbucks refers to its employees as “partners.” Each Starbucks partner is assigned a partner number. Before using the cash registers, the employee enters his or her partner number and a personal identification number (PIN). Starbucks suggests its employees sign off the register each time they step away from the register. If the employee does not sign off, the computer automatically rescreens after 10 to 15 seconds. Magdaleno testified that when one employee steps away from the register, it is possible that another employee may enter a transaction using the first employee’s computer information. But, to his knowledge, it had not happened to him in over six years of employment with the company.
Each employee counts the money in his or her till at the beginning and at the end of each shift. At the beginning of the shift, the employee enters his or her partner number and PIN into the register, removes the till, takes it to a desk in the manager’s office, counts the money on a computerized “scale,” and verifies that there is $200 in the till. At the end of the shift, the employee enters the partner number and PIN number, removes the till and returns to the scale in the manager’s office. The scale records the day’s sales, counts the money electronically, and tells the employee how much money to pull out of the till. The employee also counts out the money manually to verify the scale’s number. The employee then places the money in a sealed “drop bag,” logs the amount on the cash management log, and drops the bag into the safe. The employee puts the till back in the register, with the $200 from the start of the shift.
In 2006, the store had two surveillance cameras, one in the front pointed at the two registers and one in the manager’s office that recorded the activity at the scale. However, there was an area between those two points that was not visible on the security cameras.
Magdaleno testified that he does not authorize his employees to give free coffee to police officers or to people who work at nearby stores. But employees are authorized to give free coffee to customers if Starbucks has made an error, has not met the customer’s expectations, or if the customer has to wait because the coffee is not ready. A customer might also get free coffee if the company is having a promotion. When free coffee is given out, the employee logs the transaction at the register. Magdaleno testified that employees might give other employees free coffee behind his back, but that is not supposed to happen.
Starbucks requires that the pastries be fresh every day. Any pastries that are not sold at the end of the day are donated to charity. A Starbucks employee “mark[s] out” the number of pastries that were donated at the cash register, thereby entering the information into Starbucks’s computer system. Magdaleno has never authorized his employees to sell pastries at a discounted rate at the end of the day.
Magdaleno denied asking defendant out to a gay bar; but he did recall running into defendant at a bookstore. He did not proposition or make advances toward defendant.
Magdaleno testified that he received a telephone call from defendant a few months after defendant was terminated. In that call, defendant said, “I’ll pay you back the money that I took.” They did not discuss a specific amount. Defendant was crying and said he did not want to go to jail because his mother was ill. Magdaleno told defendant that he had no control over what was going on and directed defendant to his district manager, Jean Petty, and to Starbucks’ loss prevention investigator, Elise Lam.
Testimony of Elise Lam
Elise Lam is an investigator in Starbucks’s loss prevention department in charge of Northern California and Hawaii. Lam had been with Starbucks for 10 years; when she started with the company, she worked as a partner in a store.
Cases are referred to Lam for investigation by analysts at the company office in Seattle. The analysts use a computer program called “Exceptions” to identify cases for Lam to investigate; the program is used in the loss prevention industry. The analyst assigned to this case, Nancy Trejo, provided Lam with several documents related to defendant’s sales as compared to the sales of other employees at his store.
One of those documents, entitled “Line Voids and More Expanded 08/07/06 to 09/05/06” (hereafter Exhibit 1), was in evidence at trial. Exhibit 1 is a table that contains performance statistics for the 27 employees who worked in defendant’s store, including defendant, during the thirty-day period from August 7, 2006 through September 5, 2006. Exhibit 1 contains information regarding each employee’s: (1) total number of sales; (2) total dollar value of the sales; (3) average amount of each sale; (4) total number of transaction lines for all sales; (5) number of transaction lines that were voided sales; (6) percentage of transaction lines that were voided sales; (7) dollar value of the voided sales; (8) number of free beverages dispensed; (9) number of refills sold; (10) number of sales that were less than minimum; (11) percentage of sales that were less than minimum; (12) dollar value of all sales that were less than minimum; and (13) average value of “sales less than minimum.” The minimum sales amount was $1.10. According to Lam, Starbucks only sells four items that are priced less than minimum. The petit scones and brownie bites are 75 cents each; refills of brewed coffee and tea and newspapers are 50 cents each.
Although defendant was fifth in terms of the number of customers served (1,196), he was seventh in terms of the total dollar value of sales ($5,319.49). He had the lowest “average check” amount; the store average was $5.04 per check; defendant’s average was $4.45 per check. The number of lines defendant voided was the second highest in the store (139) and the dollar amount of his line voids was the highest in the store ($480.99). Defendant sold the highest number of refills (43); the employee with the second highest number sold 15 refills. The average number of refills for all employees other than defendant was 3.5. Defendant also had the highest number of sales less than minimum (131); the employee with the second highest number had 23 such sales and the average number for all employees other than defendant was 7.23. Defendant’s percentage of sales at less than minimum was 10.95 percent. The next highest was 3.28 percent and the store average, which factored in defendant’s number, was 1.56 percent. Defendant had the highest dollar value attributable to sales less than minimum ($87.20); the next highest was $13.95.
Four things on Exhibit 1 caused Lam to be concerned that defendant might be engaged in fraudulent activity. Defendant had the lowest average check, the highest numbers of “sales less than minimum,” and the highest number of refills sold, and his percentage of line voids was suspect.
In addition to Exhibit 1, Trejo gave Lam four “video stills,” that were based on video obtained by the surveillance cameras. They depict two separate transactions that defendant handled on August 30, 2006, and August 31, 2006. The video stills are accompanied by transaction information from the cash register that correlates with the images depicted in the stills.
The first set of video stills shows a customer placing a sandwich on the counter and the customer walking away with the sandwich. The cash register information shows that the transaction was originally rung up as the sale of an egg salad sandwich and a frappuccino chai valued at $8.15. Those two line items were voided and the sale was rung up as a petit scone valued at 75 cents.
The second set of video stills shows a customer purchasing something in a pastry bag and a small cream cheese. The transaction was rung up as a small cream cheese costing 40 cents. In Lam’s opinion, the transactions depicted in the video stills were fraudulent.
Once assigned a case, Lam contacts the district manager of the store where the employee works and arranges to interview the employee in the district manager’s presence. Lam conducts the interviews; the district manager acts as a witness. The employee does not know about the interview in advance. During such interviews, Lam questions the employees about their training and understanding of Starbucks’s procedures, shows them the questionable transactions, and asks them to explain. Lam does not assume an employee is stealing or giving away drinks and recognizes that errors could be due to problems with training.
In this case, Lam contacted defendant’s district manager, Jean Petty, and arranged to interview defendant toward the end of his shift on September 6, 2006. Lam and Petty went to the store and instructed defendant to close his till so that they could speak with him. Petty did a “till audit” (pulled the till when the employee was not expecting it). Petty had defendant count out his till while she observed the procedure. The till audit revealed that defendant’s till was over by approximately $21.
After the till audit, Lam interviewed defendant in the patio area in front of the store. When Lam talked to defendant, defendant did not say anything unusual about his training that would explain the anomalies in his numbers. Defendant had just completed his training and was able to “very carefully” describe company policies and procedures. Although defendant seemed distracted while discussing his background and training, he had no difficulty answering questions.
Defendant’s demeanor changed when Lam showed him Exhibit 1 and the video stills and asked defendant whether he had ever caused a financial loss to Starbucks. Defendant became emotional. He said that he was responsible for the amounts taken. When they discussed his “sales less than minimum” and the number of refills sold, defendant said, “I’m ashamed. I don’t want to say anything.” Defendant asked if they could move their conversation to another area. They moved from the front patio to the sidewalk around the corner.
When an employee states that there has been a financial loss to the company because of the employee’s actions, Lam asks the employee if he or she feels responsible for reimbursing the company. When Lam asked defendant this, he said he would only reimburse Starbucks if Starbucks reimbursed him for the emotional distress they had caused him. Defendant complained that his car had broken down and none of Starbucks’s employees ever offered him a ride home at night. He also stated that his mother had been sick and had been in the hospital and that none of his coworkers ever asked him about her or inquired how he was doing under the circumstances. Defendant never denied stealing from Starbucks. Lam never gave defendant an estimate of the total loss to Starbucks because their conversation went “off topic”; defendant never gave Lam a specific amount he was willing to reimburse Starbucks.
In addition to the documents presented at trial, Lam testified that she had reviewed other documents and reports from Trejo. Although Exhibit 1 covered only a 30-day period, Lam prepared an estimate of Starbucks’s losses based on the last 75 days of defendant’s employment. She explained that Starbucks’s records only go back 75 days. Lam estimated the total loss to Starbucks as $2,011.48. Of that amount, $1,087.24 was attributable to voided amounts during defendant’s last 75 days of employment. In determining the value of Starbucks’s loss based on fraudulent sales less than minimum, Lam took the total number of such transactions (131), multiplied by the amount of the average check for the store ($5.04) and subtracted the $87.20 collected for those transactions. By our calculations, that results in a loss of $573.04 ($5.04 x 131 = $660.24; $660.24 – $87.20 = $573.04). In making that calculation, Lam assumed that all 131 transactions were fraudulent. On cross-examination, Lam stated that there was no way that she could tell which of defendant’s voided transactions or sales less than minimum were legitimate and which were not.
Starbucks terminated defendant’s employment on September 6, 2006.
Lam corroborated Magdaleno’s testimony and stated that it was a violation of company policy to give free drinks to police officers or regular customers. If an employee gives a customer a free drink because of a problem with the order, the employee should use a “service recovery coupon” to record the transaction; there is also a button for this purpose on the register. Employees are not instructed to sell overstocked pastries at a discounted price at the end of the day.
Testimony of Jean Petty
Starbucks district manager Jean Petty testified that during the September 6, 2006 interview, defendant never quite admitted to taking the money, but he did not deny anything when certain facts were brought to his attention. Defendant stated that other people did not use his till while he was logged on. However, when confronted with evidence of irregular activity at his register, defendant started to blame others. Initially, defendant had no complaints about his training. But after they confronted him with the problems at his register, he said he had problems in training. Defendant never complained to Petty that he was being treated inappropriately by Magdaleno.
Defense Case
Defendant testified at trial. He was employed by Starbucks for nine months. Defendant testified that Magdaleno had instructed him and other store employees to give free coffee and pastries to police officers, regular customers, and off-duty store employees. He was told that if there was a problem, to just give the customer what they wanted.
Magdaleno told defendant that he was authorized to give discounts, especially on pastries. Magdaleno told defendant that since it was a new store, Magdaleno had no control over ordering and that the company sent him too much. Instead of donating the excess to charity, Magdaleno instructed defendant to “get whatever [he] could get” for the pastries and to ring the transactions up as 50 cents refills or other items that cost less than one dollar.
Defendant testified that most of the employees in his store did not like to give the discounts, so Magdaleno came to him directly with these instructions. Magdaleno told defendant to do it because defendant was gay. Magdaleno said that only gay people would take time with the customers to provide this benefit and the “straight guys” would not do it. Defendant explained that his numbers for refills and “sales less than minimum” were so high because those were the keys Magdaleno told him to use to record those transactions. Defendant also testified that he and Magdaleno were the only gay people that worked in the store. Defendant decided that since Magdaleno was the manager and asked him to do it, he would do it. It also made sense to charge something for the food, rather than have it go to waste or to charity. Other store employees were giving items away.
Defendant testified that there were times when other employees used his till while he was logged on and described four different times that this occurred.
With regard to the video stills, defendant testified that the customer in the first set of photos had purchased a day-old sandwich, that he could not charge her the full price for it, so he charged her for a petit scone. In the second set of photos, the customer complained because she did not get her bagel with her order, so he charged her only for the cream cheese. He told Lam this when she interviewed him.
Defendant testified that Magdaleno “kept asking” him out. Magdaleno invited defendant to a gay bar and his home and seemed disappointed when defendant declined his invitations. Once, defendant ran into Magdaleno at an adult bookstore and Magdaleno invited defendant into a booth. Defendant reported this conduct to Petty.
Defendant does not know who audited his till on September 6, 2006; he did not do it. No one ever told him what the results of the till audit were. He denied ever stealing from Starbucks.
Defendant believes he is the victim in this case. He told the jury that Magdaleno is lying because he rejected Magdaleno’s advances and that Lam and Petty lied to support Magdaleno. Defendant denied calling Magdaleno after he was terminated. He never told Magdaleno that he took any money or wanted to pay the money back. Defendant denied telling Lam that he had caused Starbucks any financial loss or that he was ashamed. He did not tell Lam that Starbucks caused him any stress, that his car had broken down, or that his mother was sick. He told Lam what Magdaleno had instructed him to do regarding the voids and Lam said she would talk to Magdaleno.
Discussion
Sufficiency of the Evidence to Support Grand Theft Conviction
A grand theft conviction under section 487, subdivision (b)(3) requires a showing that an employee has taken “money, labor, or real or personal property... from his or her... employer” that “aggregates four hundred dollars ($400) or more in any 12 consecutive month period.” Defendant contends that there was insufficient evidence to support his conviction for grand theft because the evidence did not support the conclusion that he took $400 or more from Starbucks. He also argues that convicting him of grand theft under the evidence presented here was a violation of his Fourteenth Amendment right to due process.
When a criminal defendant challenges his or her conviction on the ground that it lacks evidentiary support, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “ ‘[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction... [is] to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ [Citation.] Explaining this standard the [United States Supreme Court has] said that ‘this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation....] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Id. at p. 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
A single witness’s testimony is sufficient to support a conviction, unless it is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Scott (1978) 21 Cal.3d 284, 296; Evid. Code, § 411.) “Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the [substantial evidence] standard is sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the... jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.)
Defendant argues that Lam “simply assumed a dollar amount, without providing substantial evidence to support that assumption” and that the assumptions that produced Starbucks’s loss estimates were flawed. Defendant relies on Lam’s testimony that there was no way to determine which of defendant’s voided transactions and sales less than minimum were legitimate and which were not and that she assumed that they were all fraudulent. He argues that the “statistical tools” that Lam used and the assumptions that she made to calculate the value of Starbucks’s loss were unreliable. Defendant relies on evidence that Starbucks sold items that could legitimately be rung up as sales less than minimum, that other employees had higher sales less than minimum and higher void rates than defendant. Defendant also argues that while Starbucks’s loss claim was based on the last 75 days of defendant’s employment, the prosecution only presented statistical evidence regarding the last 30 days of employment. He asserts that as “a result of these faulty statistical assumptions, missing pieces of data, and pervasive use of ‘fuzzy’ math, the jury was given a figure that was not support by substantial evidence.” Defendant made many of these same arguments to the jury.
Lam was the only witness to testify regarding the amount of Starbucks’s loss. Her testimony included three separate calculations relating to the loss.
First, based on reports provided to her by Trejo, Lam estimated that the total loss to Starbucks for the 75-day period prior to defendant’s termination was $2,011.48.
Second, Lam estimated that $1,087.24 of the total loss was attributable to voided amounts during that same time period. Lam did not explain how she came up with $1,087.24 or what the $924.24 difference between $2,011.24 and $1,087.24 was based on. Only one of the reports that Lam relied on in calculating these figures (Exhibit 1) was in evidence. We note also that while Lam’s estimates were based on the last 75 days of defendant’s employment, Exhibit 1 covered only the 30-day period prior to his termination.
On redirect, the prosecution attempted to introduce additional documents into evidence. However, the court sustained defendant’s objection that the question was beyond the scope of cross.
Third, Lam testified about a formula that she used to determine the value of Starbucks’s loss based on fraudulent sales less than minimum during the 30-day period shown on Exhibit 1. The evidence regarding this portion of Starbucks’s claim is sufficient by itself to support the jury’s implied finding that defendant took more than $400 from Starbucks. Lam explained that she took the total number of such transactions (131), multiplied by the amount of the average check for the store ($5.04) and subtracted the $87.20 collected for those transactions. However, Lam did not testify regarding the result of that calculation. Applying Lam’s formula results in a loss of $573.04 attributable to sales less than minimum ($5.04 times 131 equals $660.24; $660.24 minus $87.20 equals $573.04). Even if the jury discounted that amount to allow for some legitimate sale less than minimum, the likely formulations, based on the statistics on Exhibit 1, would result in losses in excess of $400. For example, the jury could have determined the average number of sales less than minimum for the employees other than defendant, (which we calculate as 8), subtracted that number from defendant’s sales less than minimum, and plugged it into Lam’s formula as follows: 131 minus 8 equals 123 transactions; 123 times $5.04 (average sale) equals $619.92 less $87.20 (amount actually collected) equals $532.72. Or the jury could have used the next highest number of sales less than minimum in the store (23) to determine a discounted amount as follows: 131 minus 23 equals 108 transactions; 108 times $5.04 (average sale) equals $544.32 less $87.20 (amount collected) equals $457.12. Either way, the number exceeds $400.
The total numbers of sales less than minimum for the store was 319, less the 131 attributable to defendant leaves 188 such sales, divided by the 26 other employees in the store is 7.23. For the purpose of our calculation we will give defendant the benefit of the doubt and round this number up to 8.
In addition to the statistical data, the video clips provided two examples of the kind of fraudulent conduct that defendant engaged in. The first set of video clips showed defendant ringing up a sandwich and a drink valued at $8.15, voiding those transactions, and ringing up the sale of a scone that cost 75 cents. The photos show the customer walking away with a sandwich. The second set of clips showed the customer purchasing something in a pastry bag and a cream cheese, while defendant only rang up the cream cheese, which cost 40 cents. Lam testified that in her opinion both transactions were fraudulent. Although defendant offered testimony to explain both transactions and argued that they were not fraudulent, it was up to the jury to resolve the evidentiary dispute and decide the nature of the transactions.
Evidence of these two specific transactions on August 30, 2006, and August 31, 2006, coupled with evidence that defendant’s till was over by approximately $21 on September 6, 2006, supported the conclusion that defendant engaged in a pattern of repeated fraudulent conduct at Starbucks. The statistical data on Exhibit 1, which showed that defendant’s numbers for refills and sales less than minimum were significantly higher than other employees, and defendant’s admissions to Magdaleno and Lam also supported that conclusion.
For these reasons, we conclude that the jury’s finding that defendant committed grand theft by taking more than $400 from his employer was supported by substantial evidence.
Admission of Exhibit 1
Defendant contends that the trial court erred when it admitted Exhibit 1 over his hearsay objection because no foundation had been laid for admission of the document under the business records exception to the hearsay rule.
We review the trial court’s rulings regarding the admissibility of evidence, including the application of exceptions to the hearsay rule, under the deferential abuse of discretion standard. (People v. Rowland (1992) 4 Cal.4th 238, 264.) The trial court’s finding that a sufficient foundation has been laid will not be disturbed on appeal absent an abuse of discretion. (People v. Gutierrez (2000) 78 Cal.App.4th 170, 177-178.)
Evidence Code section 1271 sets forth the requirements of the business records exception to the hearsay rule. It provides: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”
Defendant contends that the court erred in admitting Exhibit 1 because Lam did not testify regarding the manner in which the document was prepared or what the sources of the information on the document were. He argues that “she did not make clear... whether the data was generated automatically from a computer report, collected manually by the analyst, or developed in some other manner.”
Lam testified that Trejo, an analyst that works for the company in Seattle, created a series of reports and documents for Lam to use in investigating this case, including Exhibit 1. Trejo created the reports using a software program called Exceptions that is used in the loss prevention industry. Lam testified that Trejo generated reports like Exhibit 1 for her in every case that she develops for Lam to investigate, that Exhibit 1 was generated in the ordinary course of business for Starbucks, that it was generated at or near the date range at the top of the report (August 7, 2006 through September 5, 2006), that the information on the report was a compilation of information that was entered into Starbucks’s computer system at the registers at defendant’s store, and that Starbucks relied on such reports in the ordinary course of its business. Since the report covered the 30-day period up to and including September 5, 2006, and Lam used the report when she met with defendant on September 6, 2006, a logical inference is that it was prepared on either September 5 or September 6, 2006. Since the report was prepared within a day of the last date covered by the report, we conclude that it was prepared at or near the time of the events reported on Exhibit 1.
Lam uses the reports that the analysts prepare to determine what she is going to ask employees when she interviews them. The reports Trejo prepares typically include a monthly breakdown of the suspect employee’s register information as compared to other employees in the store, as set forth in Exhibit 1. During a typical interview, Lam shows the employee the transactions that appear to be questionable and asks them to explain what is happening in those cases. Without specifically mentioning Exhibit 1, Lam testified that she showed defendant a report that compared his transactions to the rest of the employees and reported the number of sales voided at his register. Defendant objected to the admission of Exhibit 1 on the grounds of hearsay and lack of personal knowledge and the court overruled that objection.
In our view this evidence provided a sufficient foundation for the admission of Exhibit 1 under the business records exception to the hearsay rule and the court did not abuse its discretion when it overruled defendant’s objection.
Defendant’s reliance on People v. Matthews (1991) 229 Cal.App.3d 930 is misplaced. The court in Matthews concluded that the state and local rap sheets at issue in that case were inadmissible under the business record exception to the hearsay rule because the records were not properly certified and the witness who testified about the records did not describe their mode of preparation or the sources of the information in the records. (Id. at p. 940.) In contrast, Lam testified that Exhibit 1 was based on information entered into Starbucks’s computer system at the registers in the store where defendant worked and that the data was compiled in the regular course of Starbuck’s business, using software that is used in the loss prevention industry.
Defendant’s reliance on People v. Hawkins (2002) 98 Cal.App.4th 1428 is also misplaced. In Hawkins, this court held that the test for admissibility of computer printouts that reflect a computer’s internal operations is not whether the printout was made in the regular course of business and thus admissible under the business records exception to the hearsay rule, but whether the computer was operating properly at the time of the printout. (Id. at pp. 1448-1450.) Here, a computer program was used to compile data based on information that was entered by humans (the employees that worked in the same store as defendant). The data at issue here is not a record of the computer’s internal operations and the separate foundational test set forth in Hawkins therefore does not apply. Consequently, we do not reach defendant’s ineffective assistance of counsel claim based on the alleged failure to raise this issue.
Restitution Order
Defendant argues that the court abused its discretion when it ordered him to pay $2,011.48 in victim restitution to Starbucks. He contends that the award was arbitrary and capricious because it was based on the “same statistical assumptions and flawed math that purportedly justified the grand theft conviction.” The Attorney General argues that defendant forfeited this claim by failing to object to the amount of restitution order in the trial court. On the merits, he argues that the court did not abuse its discretion since defendant did not offer any evidence disputing Starbuck’s restitution claim.
Standard of Review
Restitution awards are vested in the trial court’s discretion and will be disturbed on appeal only where an abuse of discretion appears. (People v. Fortune (2005) 129 Cal.App.4th 790, 794.) “ ‘Under that standard, we are required to keep in mind that even though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.’ ” (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) “ ‘When 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.’ ” (Id. at p. 499.) “ ‘The statute [(§ 1202.4)] requires the award be set in an amount which will fully reimburse the victim for his or her losses unless there are clear and compelling reasons not to do so....’ ” (Ibid.)
General Principles Governing Victim Restitution and Restitution Hearings
Proposition 8, also known as The Victims’ Bill of Rights, which was passed in 1982, established the right of crime victims to receive restitution directly “ ‘from the persons convicted of the crimes for losses they suffer.’ ” (People v. Giordano (2007) 42 Cal.4th 644, 652.) Proposition 8 added new article I, section 28 to the California Constitution, which at the time of the offenses in this case provided: “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.” (Former Cal. Const., art. I, § 28, subd. (b).)
Former California Constitution article I, section 28 was amended by initiative measure (Proposition 9) on November 4, 2008. Former subdivision (b) was renumbered subdivision (b)(13) and the text of the subdivision was amended.
To implement Proposition 8, the Legislature enacted section 1202.4. Under that code section, the court must order direct victim restitution in “every case in which a victim has suffered economic loss as a result of the defendant’s conduct.” (§ 1202.4, subd. (f); see also § 1202.4, subd. (a)(1).) The court “shall require” the defendant to make restitution “based on the amount of loss claimed by the victim... or any other showing to the court.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so and states them on the record.” (§ 1202.4, subd. (f).)
Section 1202.4, subdivision (f)(3) provides that “[t]o the extent possible, 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....” Economic loss for the purposes of victim restitution includes “[f]ull or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.” (§ 1202.4, subd. (f)(3)(A).)
There must be a rational relationship between the restitution order and the victim’s loss, but “[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
A restitution hearing is usually held at the time of sentencing and the probation officer is required to provide the court with a recommendation whether the court “shall require” victim restitution “as a condition of probation... and the amount thereof.” (§ 1203, subd. (b)(2)(D)(ii).) “[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.” (People v. Baker (2005) 126 Cal.App.4th 463, 469.) When determining the amount of restitution, the trial court is entitled to consider the probation report. (People v. Foster (1993) 14 Cal.App.4th 939, 946 (Foster), superseded by statute on other grounds as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) “[S]tatements by the victims of the crimes about the value of the property stolen constitute ‘prima facie evidence of value for purposes of restitution.’ (Ibid.; but see People v. Harvest (2000) 84 Cal.App.4th 641, 653 ,... [probation officer’s report ‘may satisfy notice requirements for due process [citation], but it cannot take the place of evidence...’].) ‘This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.’ ” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048, citing Foster, at p. 947.)
The victim’s statement about the value of property stolen, without supporting documentation, is prima facie evidence of the value of the property for the purpose of restitution. (People v. Prosser (2007) 157 Cal.App.4th 682, 690.) “Once the victim has made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim.” (Id. at p. 691.) Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. (People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407.)
Forfeiture
In this case, the probation department recommended that defendant be granted probation on various terms and conditions, including the condition that he pay $2,011.48 in restitution to Starbucks, the full amount claimed by Starbucks. At sentencing, the trial court accepted this recommendation and asked defendant if he understood and accepted the terms and conditions of his probation, including the payment of $2,011.48 in restitution to Starbucks. Defendant did not challenge the amount of the proposed restitution order. Instead, he responded, “Yes, your Honor.”
The Attorney General argues that since defendant expressly agreed that Starbucks should receive $2,011.48 in restitution as a condition of his probation and offered no contrary evidence to dispute the amount of the restitution award, he has forfeited this claim. Defendant does not address the forfeiture issue.
Generally speaking, the forfeiture doctrine applies “to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.” (People v. Scott (1994) 9 Cal.4th 331, 353; id. at p. 356.) Thus, the failure to object to the trial court’s discretionary sentencing decisions forfeits the right to appeal such issues. (Ibid.) Here, not only did defendant fail to object to the court’s discretionary decision to order the payment of $2,011.48 in restitution to Starbucks, he affirmatively agreed to the amount of the restitution award as part of the court’s grant of probation, without renewing any of the arguments he raised at the time of trial. We therefore conclude that defendant has forfeited any claim related to the amount of the restitution award.
Further Analysis
Even if we were to conclude that this claim has not been forfeited, we would hold that the court did not abuse its discretion in awarding Starbucks $2,011.48 in victim restitution. The prosecution presented evidence regarding the amount of Starbucks’s loss at trial. Based upon the reports that she received from Starbucks, Lam testified that she had calculated a total loss of $2,011.48. She also testified that the portion of the loss attributable to voided transactions during defendant’s last 75 days of employment was $1,087.24 and that the portion of the loss attributable to sales less than minimum during the last 30 days of his employment was $573.04. We note that any lack of precision in determining the amount of Starbucks’s claim was due in part to the nature of defendant’s offense, which made it difficult to determine the exact amount that defendant stole from his employer.
The probation officer used the amount that Starbucks had reported to the police (the $2,011.48 total), which was supported by Lam’s testimony at trial, and recommended a restitution award in that amount. In our view, this was prima facie evidence of value of Starbucks’s loss for purposes of restitution. (Foster, supra, 14 Cal.App.4th at p. 946.) Consequently, the burden shifted to defendant to “come forward with contrary information to challenge that amount.” (People v. Keichler, supra, 129 Cal.App.4th at p. 1048.) At trial, defendant had challenged the amount of Starbucks’s losses, arguing that there was insufficient evidence to show losses in excess of $400, that the amount claimed was speculative, that the losses shown in the video stills were less than $10, and that Lam could not say with certainty that anyone of the suspect transactions was fraudulent. However, at sentencing, which was the time set for determining the amount of restitution, defendant did not present any evidence or argument challenging the proposed restitution award and did not renew any of the arguments he made at trial.
People v. Thygesen (1999)69 Cal.App.4th 988, the case defendant relies on, is distinguishable because the court in Thygesen did not discuss the burden of proof and the defendant in Thygesen met his burden of presenting evidence regarding the value of the stolen property in that case.
In our view, the trial court’s award of restitution was rational, based on factual evidence presented at trial and in the probation report, and within its broad discretion. We therefore conclude that the trial court did not abuse its discretion in awarding $2,011.48 as victim restitution to Starbucks.
Attorney Fees Order
Defendant contends there was insufficient evidence to support the court’s implied finding that he had the ability to pay $750 in attorney fees.
Section 987.8 provides in relevant part: “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court,... the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.” (§ 987.8, subd. (b).) Subdivision (c) of the statute provides that where a defendant was afforded such legal assistance and, “at the conclusion of the case, appears to have sufficient assets to repay, without undue hardship, all or a portion of the cost of the legal assistance provided to him or her, by monthly installments or otherwise; the court shall make a determination of the defendant’s ability to pay....” (§ 987.8, subd. (c).) “If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county....” (§ 987.8, subd. (e).)
“ ‘Ability to pay’ means the overall capability of the defendant to reimburse the costs or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernable future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernable future financial ability to reimburse costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.” (§ 987.8, subd. (g)(2).) There is a presumption under section 987.8 that a defendant sentenced to prison does not have the ability to reimburse the costs of his defense. (People v. Flores (2003) 30 Cal.4th 1059, 1068.)
An order for attorney fees is not mandatory under section 987.8, and a determination that a defendant has the ability to pay is a prerequisite for entry of an attorney fees order. (§ 987.8, subd. (e).) A finding of a present ability to pay need not be expressed, but may be implied through the content and conduct of the hearings. (People v. Phillips (1994) 25 Cal.App.4th 62, 71.) While the finding of a present ability to pay may be implied, the attorney fees order cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; People v. Kozden (1974) 36 Cal.App.3d 918, 920.)
Here, the court ordered defendant to pay $750 in attorney fees. At sentencing, after imposing other fines and fees, the court stated “I’m also going to assess reasonable attorney fees based on your ability to pay based on the items you gave regarding your employment and so forth. [¶] That’s $750 as reasonable attorney’s fees, although your attorney is worth considerably more, that you do have the ability to pay that.” The court clarified that the fee was not a condition of probation.
At trial, defendant testified that he had worked for Starbucks for nine months and that he was working for Macy’s at the time of trial. Since defendant declined to speak with the probation officer, the probation report does not contain any information regarding defendant’s education, employment history, or financial status or obligations. The probation report indicates that at the time of sentencing, defendant was 37 years old and lived in San Jose. The report listed Macy’s as his “Current/Last Employer”; his occupation and salary were “unknown.” This was his first criminal offense. The probation report did not recommend attorney fees per se, but simply contained the notation: “Attorney fees if appropriate.”
At sentencing, defense counsel stated, “While [defendant] was out pending trial, he was able to gain employment, and I believe that [defendant] has good future prospects and his potential for rehab is also very good. [¶]... [¶] [Defendant] and his younger brother are the sole support of his mother, and since he has been in custody it has been very hard on his family.” Although defendant was employed, the record does not indicate whether he was employed part time or full time, the type of work he did for Macy’s, or how much he made. There is no information regarding other sources of income, defendant’s assets, or his expenses, except that he helps support his mother. The conditions of defendant’s probation included six months in county jail. Assuming he would be eligible for credits for work and good behavior, he would be expected to actually serve four months in jail. At sentencing, he received 36 days credit for time already served. Thus, defendant was facing at least two months three weeks in jail. There was no evidence that Macy’s intended to hold his job for him while he was in jail.
For these reasons, we conclude that “there is no substantial evidence to support the trial court’s determination that [defendant] possessed the present ability to pay the sum assessed.” (People v. Kozden, supra, 36 Cal.App.3d at p. 920.)
Both parties suggest remanding this matter for further proceedings regarding defendant’s ability to pay attorney fees. We conclude that due to the modest amount of attorney fees involved ($750), remanding this matter for further judicial proceedings is likely to result in additional expense that far exceeds the amount at issue. In the interests of judicial efficiency and economy, we shall therefore strike the order directing defendant to pay attorney fees.
Disposition
The court is ordered to strike the $750 attorney fees order. As so modified, the order granting probation is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.