Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 76392
NEEDHAM, J.
Kelsey B. appeals from a $2000 restitution order that was entered after she admitted an allegation in a juvenile wardship petition that she had appropriated lost property under Penal Code sections 485 and 487. She argues that the order should be stricken because: (1) it was a significant deviation from her plea agreement; (2) the court failed to adequately advise her that her admission could be relied upon to order restitution; and (3) the restitution order was based on multiple layers of unreliable hearsay evidence, which was insufficient to establish that the victim suffered a loss. We affirm.
I. Background
On September 15, 2006, 16-year old appellant went with her 19-year-old friend Michael Dupree Burrell to a Quickly restaurant, where they found a green satchel on top of a telephone booth outside. Appellant took a small black pouch from the satchel and went inside to the restroom, where she looked through it and found some checks. Burrell followed her with the satchel, searched it, and discovered some papers. They threw everything into a trash can and then left to meet Christine Y., a friend who worked at the Quickly restaurant. The group went to Target and to a Verizon store, where Burrell bought a cell phone cover, but they did not make any major purchases
The satchel and pouch belonged to Edward Collins, who had mistakenly left them on top of the telephone booth earlier that day. He returned to Quickly’s and found his belongings inside the trash can where appellant and Burrell had left them. According to Collins, the black pouch had contained $2000 in cash, which was missing. The owner of the restaurant checked surveillance videos, which showed appellant and Burrell taking the satchel and pouch inside the restroom before leaving the restaurant. The owner telephoned Christine Y., who had left work and met appellant and Burrell, and the group returned to the restaurant, where appellant and Burrell were arrested.
Appellant told the police that she and Burrell had gone through the satchel and the black pouch inside, but did not see any cash. Asked whether she would have taken the money if she had found it, appellant responded, “Well, yeah.” During a second interview at her school a few days later, appellant told police she had seen a man using the telephone and had noticed the green satchel about 45 minutes later. She found some checks inside the pouch, but threw them away because she could not use them without identification. Appellant repeatedly stated during the interview that there was no “$3000” in the satchel or pouch. Appellant’s father did not notice any unusual expenditures by appellant.
About a week later, Collins contacted the police and provided them with a letter from his bank regarding the $2000 in cash that was missing. The letter stated that on September 12, 2006 (three days before Collins lost his satchel) he had cashed a personal check in the amount of $2000.
The district attorney filed a wardship petition under Welfare and Institutions Code section 602 alleging that appellant had committed the felony of appropriating lost property valued at more than $400 under Penal Code sections 485 and 487. At a pretrial hearing before the jurisdictional hearing, defense counsel indicated that appellant was willing to admit the allegation as a misdemeanor. After the prosecutor moved to reduce the charge to a misdemeanor under Penal Code section 17, subdivision (b), the court advised appellant of her constitutional rights and accepted her waiver of those rights. The following colloquy ensued:
The offense of misappropriating lost property with a value over $400 is a “wobbler” offense alternatively punishable as a felony or misdemeanor. (See Pen. Code, §§ 17, subd. (b), 485, 487, 489, subd. (b); People v. Crossdale (2002) 27 Cal.4th 408, 410-411.)
“The Court: Is it true that on September 15th of 2006 you took property that was lost and basically made it your own knowing it wasn’t your right to do so; the amount being in excess of $400 in value? [¶] That’s a violation of section[s] 485 and 487 of the Penal Code.
“[Defense Counsel]: Your Honor, we are admitting with the understanding that the value is less than $400.
“[The Prosecutor]: Actually, the offer is a 485 and 487 just as a misdemeanor.
“The Court: So they are not turning it into a petty theft. They are taking it as a grand theft, property value in excess but as a misdemeanor.
“[Defense Counsel]: Perhaps we should wait a moment because my client will not agree to . . . restitution. [¶] She never took the money out of the satchel, but she admits to taking the satchel and taking it into the bathroom. So I was going to argue she should not be ordered to pay the restitution. [¶] If they are seeking that restitution, then we have to set this for hearing.
“The Court: Well, there can be an admission to the charge, but then you still reserve the issue as to the restitution.
“[Defense counsel]: All right.
“The Court: In other words, we won’t hold an admission for this as a misdemeanor against her for restitution setting.
“[Defense Counsel]: All right.”
“The Court: So I will sustain the allegation as a misdemeanor with the understanding that in and of itself is not going to be used as far as resolving the issue of restitution. That will be reserved in a hearing set for that purpose.”
The court then placed appellant on probation as recommended in the social study and set a contested restitution hearing without objection by defense counsel.
In preparation for the restitution hearing, the probation officer submitted a memorandum noting that Collins, the victim, was living outside the country working for the State Department and had provided no new information regarding his loss. The memorandum noted that Collins’s bank, USAA Federal Savings, had written a letter to the police stating that Collins had cashed a personal check for $2000 on September 12, 2006. Attached to the memorandum was a copy of an email that Collins had sent to the Bank requesting documentation of the $2000 check cashing, which included what appears to be his draft of the letter to be sent from the bank to the police department regarding the same.
At the restitution hearing, defense counsel reiterated that appellant had not admitted taking the $2000 that Collins claimed was missing from the black pouch. He noted there was no evidence appellant was ever in possession of the money or that she and Burrell had spent large amounts when they went shopping that afternoon. Counsel also argued that because Collins had cashed the check for $2000 at his bank three days earlier, there was no “proximity in time” between that transaction and the money claimed to be missing. The prosecutor responded that at a restitution hearing, the information supplied by the probation officer was presumed to be correct and appellant had not rebutted the presumption. They continued:
“[Defense Counsel]: Your Honor, at the time of the admission, you would recall we were only admitting to the possession of the pouch.
“The Court: You want to withdraw the admission and start from scratch?
“[Defense Counsel]: Yes.
“The Court: All right. Can I have the whole file? [¶] We are going to have to set a new trial date. There will be a new sentencing.
“[The Prosecutor]: Your Honor, at this point we are not going to bring the victim in. If the Court is going to make a ruling without the restitution, we would rather do that[.]
“The Court: No. I mean, we are either going to start from scratch and then she faces the potential penalties, or she’s going to pay the restitution.
“[The Prosecutor]: (Nods head) Okay.
“The Court: Let me review this thing again and see if there’s a reservation of restitution indicated by the court. . . . [¶] It was set for a restitution hearing.
“[Defense Counsel]: Correct, Your Honor. It was based upon my indication to the Court that we were not accepting the allegation with regard to the $2,000.
“The Court: So basically it’s a dispute. He presented evidence by the victim that would circumstantially indicate the money was there. Do you have evidence to present that would contradict that?
“[Defense Counsel]: I can put my client on the stand. . .
“The Court: Put your client on. So far you haven’t rebutted the presumption.”
Appellant then testified that on the day of the offense, she went to the Quickly restaurant between 2:00 and 3:00 in the afternoon, that she and Burrell ate and then sat outside the restaurant to wait for their friend Christine Y. to finish work, that she knew Collins was on the telephone nearby, that when she went in and out of the restaurant again Collins was gone, that 15 to 20 minutes after he left she noticed a “briefcase” on top of the phone booth, and that she and Burrell found no money when they took it inside the restroom and looked through the contents. Appellant did not notice anyone using the telephone after Collins left, but there were “kids” around who could have looked into Collins’s bag when she and Burrell went into the restaurant.
After hearing appellant’s testimony, the court ordered her to pay $2000 in direct victim restitution. (Welf. & Inst. Code, § 730.6, subds. (a)(1), (a)(2)(B) & (h).) In support of this order, the court stated, “I find it totally implausible that [appellant] did not participate in taking the money.”
II. Discussion
A. Deviation from the Plea Bargain
When a guilty plea or admission in a juvenile case is accepted by the prosecuting attorney and approved by the court, the defendant cannot be sentenced to a punishment more severe than that specified in the plea. (Pen. Code, § 1192.5; Santobello v. New York (1971) 404 U.S. 257, 262; People v. Walker (1991) 54 Cal.3d 1013, 1024.) The imposition of a more severe sentence violates statutory law and implicates the defendant’s constitutional right to due process. (Walker at p. 1024.)
Appellant contends the restitution order was not authorized because it violated an express term of her plea agreement. She claims the court secured her admission by promising that it would not be construed as proof she had stolen the money, but then relied on the admission when it set the amount of restitution. We disagree.
Contrary to appellant’s factual premise, the trial court did not treat her admission as conclusive evidence she had taken the money. Rather, it based its ruling on the arguments and evidence at the restitution hearing. Appellant was never told that by admitting the misdemeanor charge she would be excused from paying restitution. She was simply advised that an admission she took property valued at more than $400 would not be treated as proof she had necessarily taken the $2000 in cash. The court did not renege on this promise and the restitution order did not violate any term of appellant’s plea agreement.
Nor do we agree with appellant’s suggestion that her admission was used against her at the restitution hearing because the court placed the burden on her to “disprove she had taken the money.” It is well-established that 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. (People v. Fulton (2003) 109 Cal.App.4th 876, 886; In re S.S. (1995) 37 Cal.App.4th 543, 546-547; People v. Foster (1993) 14 Cal.App.4th 939, 946-947, superseded by statute on other grounds, as stated in People v. Birkett (1999) 21 Cal.4th 226, 238-245.) The court adhered to this procedure, considered the information presented in the probation officer’s report, and concluded that appellant’s testimony was insufficient to rebut the victim’s claimed loss of $2000. Appellant’s admission to the substantive offense was not used to shift a burden of proof that would have otherwise fallen on the prosecution, except in the sense that without an admission or other adjudication of guilt, there would have been no basis for ordering restitution at all.
B. Advisement of Penal Consequences
In a similar vein, appellant argues that she was not adequately advised of the direct penal consequences of her admission because the court did not tell her that restitution would be ordered based on her admission. Again we disagree.
An accused must be advised of the direct penal consequences of a plea or admission. (People v. Wrest (1992) 3 Cal.4th 1088, 1102-1103.) We assume for the sake of this decision that victim restitution is one such direct penal consequence. (People v. Brown (2007) 147 Cal.App.4th 1213, 1222 [direct victim restitution is penal consequence for purposes of determining whether plea bargain violated]; but see In re I.M. (2005) 125 Cal.App.4th 1195, 1210 [victim restitution as condition of probation is not a penal consequence of which the defendant must be advised].)
Here, the court advised appellant she could be ordered to pay restitution when it accepted her admission. The court set a special hearing on the restitution issue, to which defense counsel did not object. As discussed above, the only promise made by the court in this respect was that it would not consider appellant’s admission of the substantive charge as proof that she had taken the money. This promise was not violated. Appellant knew at the time she entered her admission that the victim claimed a loss of $2000 in cash and that the issue would be resolved at the restitution hearing. No more was required.
C. Evidence Supporting Restitution Order
Appellant complains that the court’s restitution order was based on double hearsay: Collins’s statements to the probation officer regarding the lost cash, as memorialized in the probation report. She argues that Collins’s claim of loss was inherently unreliable and uncorroborated by any evidence that could properly be considered by the court.
This claim was forfeited by appellant’s failure to object in the trial court. (People v. Williams (1997) 16 Cal.4th 635, 681; Evid. Code, § 353, subd. (a).) Even if the issue had been preserved, it is lacking merit because a court may consider hearsay information contained in a probation report to support a restitution order. (See People v. Cain (2000) 82 Cal.App.4th 81, 88.) Collins’s claim that his pouch had contained $2000 in cash was not inherently unreliable and was itself sufficient to support the order. Moreover, this claim was corroborated by a letter from Collins’s bank to the police stating that Collins had cashed a personal check for $2000 a few days earlier. Though appellant argues that the only evidence of the bank’s letter was the email draft prepared by Collins, the probation officer’s memorandum for the restitution hearing states that police did receive the letter from the bank. The court was entitled to consider this information in determining whether Collins had actually suffered the loss he reported.
We also reject appellant’s claim that the evidence was insufficient to support the restitution order. Unlike a criminal trial, where the prosecution bears the heavy burden of proof beyond a reasonable doubt and evidentiary rules must be strictly followed, a juvenile court awarding restitution need not “conduct a lengthy, formal hearing to explore all aspects of the victims’ claimed losses and appellant’s defenses. In other words, in the restitution context it is not necessary to determine the damages which might be recoverable in a civil action. . . .[¶] . . . [T]he court may use any rational method of fixing the amount of restitution.” (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391.)
III. Disposition
The judgment is affirmed.
We concur. SIMONS, Acting P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.