Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. No. FVI026461
Erin Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Teresa Kleeman was charged with felony diversion of money received for construction of improvements. (Pen. Code, § 484b.) She pled no contest to misdemeanor entering and occupying real property or structures without the consent of the owner. (§ 602, subd. (m).) The diversion charge was dismissed but the plea agreement included a waiver permitting the trial court to consider the original charge during sentencing, and defendant was placed on probation. One of the probation conditions was the payment of restitution resulting from the dismissed diversion charge. (See § 1192.3.) Defendant appeals the amount of the restitution award. We affirm.
Unless otherwise noted, further statutory references are to the Penal Code.
BACKGROUND
Seeking to build a new facility to expand a business, Patricia Schmitt contracted with Max Steel Buildings (MSB) to purchase a steel building. Ms. Schmitt’s contact at MSB was defendant. On October 17, 2006, defendant received Ms. Schmitt’s cashier’s check of $16,100 for one-half the agreed price of $32,200 to engineer and manufacture the steel building. Defendant was authorized to open bank accounts and write checks on behalf of MSB. Defendant deposited the funds into a bank account for MSB. Defendant later took $10,400 out of the account for herself because she was owed money by MSB for her contractual services.
At the preliminary hearing, a sheriff’s deputy testified that a bank fraud investigator had told him that a money order was used on October 20, 2006, to open a new account for MSB “as a construction trust fund.” The deputy further testified that the bank investigator had sent all the documentation that she was relying on, but that none of the documentation the deputy received and included in his report used the term “construction trust account” and he had not been informed of a number code to designate an account as a construction trust account. The deputy commenced his investigation after being contacted by his retired former partner who was hired as a private investigator by Michael Slusser, defendant’s estranged ex-husband and owner of MSB.
At a continued restitution hearing, defendant testified that the new account into which Ms. Schmitt’s money was deposited was not a trust account but was to be a general savings account for MSB. Defendant further testified that the withdrawal was without Mr. Slusser’s permission. However, Mr. Slusser testified at the continued restitution hearing, that defendant was due payment from MSB.
Mr. Slusser further testified that he received engineering plans from the engineering contractor for Ms. Schmitt’s project, paid approximately $2,500 for the plans out of the general checking account, and personally delivered the engineering plans to Ms. Schmitt after he received them from a courier. Mr. Slusser thought he still had a contract to deliver a building to Ms. Schmitt, stated that he had done some of the red iron fabrication, the materials for which cost around $5,000, but that the sheeting and substructures are ordered from other companies, and that he was awaiting confirmation that the site was ready for the building. About two weeks prior to the restitution hearing, Mr. Slusser gave the balance of the account, approximately $5,800 including interest, to Ms. Schmitt because the investigating detective threatened to have him arrested if he did not. Mr. Slusser stated that “[t]he money should be paid back to the company so the company can provide the building to the customer. Somehow along the way the D.A. derailed this where now [defendant] is responsible for my customer and my contract.”
On September 21, 2006, prior to hiring MSB, Ms. Schmitt contracted with Rose Design for architectural services and gave them a $10,000 deposit. In order to proceed, Rose Design needed engineering plans for the steel building. Ms. Schmitt was to get the plans to Rose Design within two to three months, but she testified that she did not receive “engineering designs or measurements or any plans.” Ms. Schmitt testified that in mid-December Mr. Slusser came to her house and told her that defendant took her money, that there was not much he could do, but he never told her she was not going to get her building. She further testified that Rose Design told her she did not give them “the proper engineering plans that they needed.” She also testified that nobody at MSB would help her, so she could not get the engineering plans that she needed. Rose Design told her she was in breach of contract because she did not provide the engineering plans. Rose Design went out of business in March 2007 without returning any of the deposit.
The contract with Rose Design permitted termination and provided that if it was with “no fault of the designer,” that “Rose Design shall be compensated for all work that [had] been completed plus reimbursable expenses.” Ms. Schmitt did not terminate the contract because she wanted to go forward with the project; she did tell them in January what Mr. Slusser had told her. However, she was under the impression that Rose Design would keep the full $10,000 if she terminated the contract.
Prior to the trial court announcing its decision, the deputy public defender suggested that $10,400 was owed to MSB. The trial court responded by stating, “[Y]eah right. Yeah that was an interesting approach. After, ‘No, I got the building. She just hasn’t asked for it,’ we go to, ‘Yeah, but if she pays me the money, then I can deliver it.’ So that was kind of an interesting take on it. [¶] I’m not going to second guess the investigation of who should have been charged in this case, but that’s over with, but I think there was certainly a lot of self-serving statements given by a lot of people today. [¶] Anyway, the Court finds the restitution due is the $10,400 that was taken from the account. And whether there was a trust account or not doesn’t matter. The Penal Code provides that money that is collected for any kind of services, labor, materials, equipment, et cetera, has to be used for that job. [¶]... [¶] And whether you call it a trust account, whether you put it in a separate account, that money is supposed to go to the project that person is going to give you. [Y]ou can charge fees. You can charge overhead. You can charge such things so you make a profit, but you just don’t get to use it for anything you want to use it for. [¶] And if you do end up in legal trouble, maybe you throw down the person who wrote the check, but maybe you take responsibility. Maybe not. Anyway, the victim here did not get what she paid for. And she did get the $5800 back. So she’s still owed—and I guess there’s a request about interest in that, whether it was $5700 or $5800 she got back. So out of the $16,100, that leaves [$]10,300.... [¶] And then the other question, of course, is the money to the Rose Design. Now, the Court’s really given that a lot of thought because it seems that she could have probably cancelled that contract and gotten at least part of her money back, but Mr. Slusser himself said here today that he told her he was going to try to get her the building. So she certainly had reason, if that is [t]rue, to believe that she was going to get it, and why would she cancel that other contract and then within a few months, they were out of business and she couldn’t get it back. [¶] So I think it’s reasonable to also award the $10,000 that she was out to Rose Design because it wasn’t her fault, and I don’t believe that it’s appropriate to attribute that to her fault. So it’s [$]10,300, and its [$]10,000 to Rose Design. And then she also testified about a $40 child care payment that she had to make to come to court the last time.”
The trial court also included interest of $3,390 on the $20,300 from November 14, 2006, to September 5, 2008, for a total award of $23,730. No restitution was awarded to MSB.
STANDARD OF REVIEW
“A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. “ ‘[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.” ’ [Citation.]” (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.)
DISCUSSION
Defendant contends that the trial court erred in awarding restitution to Ms. Schmitt for the deposit she paid to Rose Design. In particular, defendant contends that she did not cause Ms. Schmitt to lose her deposit.
As a condition of probation, anyone may be awarded restitution for any injury done to them resulting from the breach of the law if the court determines it would be “fitting and proper to the end that justice may be done.” (§ 1203.1, subd. (j).) “There 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 (Carbajal).) “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].” (Ibid.) “ ‘[A] condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ [Citation.]” (Id. at p. 1123.)
Pursuant to defendant’s waiver, the trial court considered the diversion count when setting restitution. (§ 1192.3; People v. Harvey (1979) 25 Cal.3d 754.) Accordingly, the restitution award as to the deposit Ms. Schmitt lost to Rose Design is valid if it is reasonably related to the diversion or reasonably related to future criminality.
We find that the restitution is reasonably related to both the diversion as well as to deterring future criminality. This is because the diversion contributed to Ms. Schmitt losing her deposit and because requiring defendant to assume financial responsibility for some of the harm she set in motion is both a rehabilitative measure tailored to correcting her behavior as well as a deterrent to future diversion. (See, Carbajal, supra, 10 Cal.4th 1114, 1124.) As indicated above, causation or other constraints in determining civil liability do not constrain a probation restitution award. Thus, awarding restitution for Ms. Schmitt’s losses that may only have been indirectly caused by defendant’s diversion is permissible under section 1203.1.
Defendant argues that only losses that are the direct result of a defendant’s conduct can be the basis of restitution. In support of this proposition she cites People v. Crisler (2008) 165 Cal.App.4th 1503 (Crisler), People v. Percelle (2005) 126 Cal.App.4th 164, and People v. Thygesen (1999) 69 Cal.App.4th 988. However, these cases apply to restitution under section 1202.4, which is a restitution fine and not restitution as a condition of probation under section 1203.1. Restitution as a fine only extends to “ ‘loss which is proved to be the direct result of the defendant’s criminal behavior.’ ” (Crisler, at p. 1508.) However, as we indicated above, there is no such limitation when restitution is ordered as a condition of probation. (See Carbajal, supra, 10 Cal.4th at p. 1121.) “If a defendant believes the conditions of probation are more onerous than the potential sentence, he or she may refuse probation and choose to serve the sentence. [Citation.]” (People v. Olguin (2008) 45 Cal.4th 375, 379.)
Accordingly, we hold that the trial court did not abuse its discretion in setting the amount of restitution.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.