Opinion
NOT TO BE PUBLISHED
Super. Ct. No. S03CRF0359
DAVIS, Acting P.J.
The information in this matter charged defendant Jennifer Larsen with the crime of embezzlement “[o]n or between the 1st day of December[] 2000 through [the] 31st day of August[] 2003.” The trial court suspended imposition of sentence and placed her on probation subject to a number of conditions, among which was payment of restitution to the victim.
On appeal, the defendant contends that the court should have instructed the jury on the need for unanimous agreement on the criminal event underlying her conviction; that it should not have instructed on flight; that it erred in rejecting her motion for a new trial based on juror misconduct; that it erred in preventing her expert from offering an opinion on whether she could have committed the offense; that her trial counsel was ineffective in several respects; and that the order for restitution is flawed constitutionally. We shall affirm.
Facts
The victim is a resort operating under a use permit from the Forest Service on the south shore of Lake Tahoe. Its facilities include campsites, a marina, restaurants, a store, and a hotel. During its peak summer season, its staffing almost doubles from the winter employment level of 200-250.
The defendant began working at the resort in April 2000 with responsibility for maintaining the payroll. At that time there was a supervisor with the title of controller and two other people working in the accounting department. These three other people had access to the cash vault, but she did not. In June 2000, new owners bought the resort and laid off the other three members of the accounting department, leaving the defendant on her own except for a “very brief” period of time when another controller supervised her before he quit.
In December 2000, the resort hired a new supervisor for the accounting department, who took the title of finance director (feeling it more accurately described her responsibilities than controller). She learned how to work the accounting software from the defendant. The supervisor made use of a temporary employee for a few months in 2001 before hiring a clerk to monitor the cash vault in May of that year. In early 2002, the supervisor hired a clerk for cash receipts and accounts payable. In late 2002, she hired a clerk to assist with the cash vault, who later assumed responsibility for accounts payable when the original payables clerk left in early 2003. The original vault clerk left in June 2003 for health reasons; the supervisor hired a replacement who continued in that position into 2005. The supervisor made all the new employees subordinate to the defendant, who held the title of accounts (or office) manager and on whom the supervisor relied for documentation of transactions (including the monthly balance in the cash vault).
The resort’s outside auditor testified that it is not out of the ordinary for a supervisor to rely on summarizations of the financial transactions from a subordinate.
All these other clerks had access at different times to the cash vault, along with the defendant and her superiors. In addition, because it was a small accounting department, all of the clerks had access to the computer records in order to make entries.
For the first two years of her tenure, the supervisor was unable to verify the totals indicated in the general ledger and the year-end balance sheets for the cash vault, since supporting documentation was nonexistent. Therefore, the year-end balance in the cash vault in 2002 of $68,000 (which the supervisor had to obtain from the outside auditor) had to be accepted as a starting point, even though she believed this figure was extraordinarily high for such an account during a slow period of business.
The original vault clerk testified that the defendant, on occasion, would come to the room with the announced intention of converting $20 bills from relatives into $100 bills. The clerk did not observe the process. On one occasion, the clerk found that a bundle of $20 bills from the bank was short $280, and reported this to the defendant.
In late July 2003, the resort’s general manager asked the defendant for a year-to-date summary of an account that recorded credits from the Forest Service for capital improvements that the resort made to the property. Later that day, she came to his office and seemed agitated. She said it would take two weeks to prepare. The general manager then sent a memo that same day to the defendant’s supervisor emphasizing his need for the information. It took the supervisor no more than five minutes to print out the information. In reviewing this account, she found three unusual debits for May 2003 that increased the total in the account. These were orders for change from the resort’s bank, which should have been posted as increases to the cash vault account instead. These totaled about $18,000. She could not find any original internal documents reflecting the requests for change, but the bank statements showed that the funds had been delivered. These were the only change requests for which the internal documentation was missing. It is difficult to identify either the actual date on which someone inputs an entry, or the identity of the person making the entry, without the underlying internal documentation. Believing this to be merely a posting error, the supervisor asked the defendant to investigate it.
Later that week, in her attempt to settle the actual balance of the account for the cash vault, the supervisor identified two unusual credits in accounts payable (which ordinarily posts only debits) relating to petty cash, reducing the total, that had corresponding debits to reduce the total of petty cash in the vault account by approximately $20,000. These entries were dated February 2003. The defendant had stopped giving her supervisor the itemizations in the monthly accounts payable reports in February 2003, providing only the final page with the totals. These unusual entries would have jumped out to anyone reviewing the reports. The supervisor could not find underlying internal documentation to support these “reverse” postings to accounts payable. Again, without any of the underlying documents, one cannot tell who posted the entries, or when. The supervisor shared her awareness of this shortage only with the defendant.
The supervisor sought the balance sheets for the vault, as the monthly balance sheets she received did not have much of the supporting documentation attached. These were ordinarily kept in a binder in that room. They were incomplete, and in particular did not include the misposted entries for change requests or the petty cash reversals to accounts payable. The month-end reports for February, March, April, May, and June 2003, all of which the defendant had prepared for her, showed that the cash vault total was in line with the general ledger, which would not be the case if the February adjustments and the May mispostings had actually been posted in February and May.
On July 31, 2003, the newest of the clerks for the cash vault returned from vacation and tidied up the room, getting down on her hands and knees to pick up paper clips and coins from the floor before vacuuming. Sometime later, the defendant came in with her supervisor, and crawled under a desk. She emerged teary-eyed with a bank deposit bag stuffed with a little more than $19,000 in cash. The clerk did not believe that she would have missed this bag while cleaning up the room. The defendant suggested that this was money emptied from the ATM in February. They returned the money to the vault.
The defendant had prepared a statement for the vault account as of August 1, 2003. At this point, adjustments to the general ledger for the erroneous February and May entries should have been made, as well as adding back the cash newly discovered in the bank bag. Nevertheless, the month-end report for July 2003 showed that the vault account and the general ledger were in balance. In reality, the general ledger showed that the vault should have a balance of over $108,000.
The supervisor decided to shut down the ATM on August 4. The defendant had just loaded the machine with $10,000 from the vault a few days earlier, accompanied by the newest vault clerk, who had not personally observed the defendant in the process of loading it. The defendant abruptly left after delivering the ATM money to her supervisor, ostensibly to deal with family demands. After reviewing the ATM transactions, the supervisor determined there should have been a little more than $17,000 in the machine. The supervisor and the newest vault clerk counted the money from the machine, which totaled only $3,140.
The defendant testified that the atmosphere toward her in the accounting department had become frosty in August 2003. She gave notice to her supervisor in mid-August, which the latter assumed meant that the defendant would be staying through the end of the month. However, the resort’s outside auditor showed up unannounced on August 22, 2003, to interview the defendant about the discrepancies in the accounts. He did not at this time think that these reflected intentional fraud. The supervisor was present for most of the meeting until the auditor asked her to leave. He then asked the defendant if she had taken the missing money, because it did not look good for her. The defendant began to cry. The auditor left to have lunch with the supervisor, and said he would like to speak with her afterward. The defendant retrieved her paycheck and left her keys with a note in the supervisor’s office asking if she were going to be fired. She told her coworkers that she was quitting. She never returned to her employment.
The supervisor prepared the monthly report for the balance in the cash vault at the end of August 2003, which totaled a little more than $20,000 and did not include the money removed from the ATM, which now had its own account. According to the general ledger, however, there should have been about $95,000 in the vault. This meant the vault was short about $75,000, a figure that the resort wrote off at the end of 2003 as a loss.
The resort’s outside auditor testified for the prosecution as an expert. He believed that someone knowledgeable about the accounting system was siphoning cash from the vault and posting entries to lower the vault’s balance in the general ledger. He found the amount of cash allocated to the ATM suspicious. He could not think of any logical reason for the erroneous postings, which should have jumped out at anyone reviewing those accounts, other than to lower the balance in the general ledger for the vault to conceal misappropriated cash. He agreed that $75,000 was missing over the course of 2003, and suspected more could have been missing from earlier periods but lacked the documents to go behind the $68,000 year-end balance for the cash vault with which he had to begin. After reviewing the defendant’s bank statements for 2002 and 2003, he found 30-40 cash deposits other than her paycheck, in some cases specifically identified as $20 bills. Several of these were for large amounts, including one for $3,500 after she left the resort’s employ. Altogether, the defendant had deposited roughly $15,000 in the course of 2003. Her net monthly income (in excess of expenses) was no more than $200.
Discussion
I
The defendant argues that the prosecution based its case against her on three discrete events: the incorrect entries in February 2003 to accounts payable; the change request entries improperly posted in May 2003 to the account for credits to expenses for capital improvements; and the money missing from the ATM in August 2003. As the prosecution did not elect one of these discrete events as the basis for the single count of embezzlement, the defendant believes the trial court erred in failing to instruct the jury to agree unanimously on the same event as the basis for its verdict. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
This requirement of unanimous agreement on the criminal event underlying a conviction does not apply where multiple events are part of a closely connected series of events to which a defendant offers the identical defense (and therefore a jury could not reasonably distinguish among them) or where the statute evinces legislative intent to punish a course of conduct rather than discrete events. (People v. Napoles (2002) 104 Cal.App.4th 108, 115 (Napoles); People v. Haynes (1998) 61 Cal.App.4th 1282, 1295-1296; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 646, p. 928.) As we find the latter exception to apply, we do not need to consider the former.
We have noted in the past that one indicium of a legislative intent to punish a course of conduct is language that focuses on a goal or effect of an offense, rather than the means (People v. Sanchez (2001) 94 Cal.App.4th 622, 632); another is where the gravamen of the offense lies in its cumulative effect (ibid.; People v. Salvato (1991) 234 Cal.App.3d 872, 882). The statute defining embezzlement would appear to focus on the means, as it centers on “the fraudulent appropriation of property.” (Pen. Code, § 503.) But the Legislature also stated that “[A] distinct act of taking is not necessary to constitute embezzlement.” (Id., § 509; see People v. Rowland (1909) 12 Cal.App. 6, 25 [suggesting that even where evidence of a specific act is not sufficient, evidence of general shortages in accounts over which defendant exercised control are sufficient to sustain conviction, given secrecy of crime and innumerable ways in which embezzler’s ingenuity can operate].) We find this to be an express indication that a single count of embezzlement can consist of a cumulative series of fraudulent appropriations, even though a single event could be the basis for a prosecution as well. (Cf. People v. Ewing (1977) 72 Cal.App.3d 714, 717 [child abuse]; People v. Howes (1950) 99 Cal.App.2d 808, 818-189 [where evidence only of single intent to embezzle involving single victim, may aggregate for grand theft].) With such a crime, where an information charges the occurrence of a single offense over a period of time (such as the information in the present case), the issue for a jury is whether a defendant is guilty of a course of conduct, not specific criminal acts. (Ibid.; Napoles, supra, 104 Cal.App.4th at p. 116.) Both the prosecution and the defense argued in terms of the whole of the $75,000 shortage, with the specific incidents being evidence of the identity of the embezzler, not alternate bases of liability. As a result, the prosecution did not need to select one of the incidents as a basis for conviction, and the trial court was not required to instruct on the need for unanimity.
The cases on which the defendant relies do not compel a contrary conclusion. People v. Diedrich (1982) 31 Cal.3d 263 involved a county supervisor with two convictions for bribery. Underlying one count were two different solicitations on the part of the supervisor to developers, one of which involved purchasing property owned by his campaign manager at an inflated price, and the other involved hiring the supervisor’s personal attorney as a conduit for payments. (Id. at pp. 268-269 & fn. 2, 271, 280.) Diedrich declined to consider whether the crime of bribery could punish a course of conduct, because that had not been the theory on which the prosecution tried the case (id. at pp. 280-281), but did suggest that, like the laws criminalizing actions intending to procure miscarriages, each action toward that goal stands as an independent crime (id. at pp. 281-282). Diedrich therefore does not provide any guidance on whether embezzlement can embrace punishment for a course of conduct. The same is true of People v. Laport (1987) 189 Cal.App.3d 281, 282-283 (which held only that embezzling checks and paintings from a gallery were not part of closely connected events raising the same defense, and did not consider whether the crime can consist of a course of conduct). People v. Daniel (1983) 145 Cal.App.3d 168, 172-173, 175, is in fact adverse to the defendant, because it concludes that a defendant could be convicted of embezzlement for a course of conduct against his business (aggregating various takings), but held that this theory could not apply to a count based on misappropriating funds that two different investors lent to him on separate occasions, because the failure of the jury to sustain a quantity enhancement showed that it did not find that both of the transactions were fraudulent.
II
The defendant next contends that the trial court erred in instructing the jury in accordance with Penal Code section 1127c that evidence of “flight” after the commission of a crime is not the sine qua non of guilt but is a circumstance, if proven, that the jury may consider in determining the guilt of the defendant. The circumstance to which this instruction relates is the abrupt departure of the defendant after her interview with the outside auditor. The prosecutor referred in passing to this circumstance in her rebuttal argument.
“She’s the only one who walked off her job when the CPA came in to try and figure out what the accounting errors were . . . .”
“In general, an instruction advising the jury that evidence of flight alone is insufficient to establish guilt but may be considered with other proven facts in determining guilt ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’” (People v. Roybal (1998) 19 Cal.4th 481, 517; accord, People v. Turner (1990) 50 Cal.3d 668, 694 [flight instruction proper “whenever evidence of the circumstances of defendant’s departure from . . . his usual environs . . . logically permits an inference that his movement was motivated by guilty knowledge”]; People v. Peak (1944) 66 Cal.App.2d 894, 910-911 [defendant’s intent in flight immediately after being accused of crime is circumstance for jury to determine].)
The defendant contends that her departure from work was under circumstances that would cause anyone to leave suddenly, not only those motivated out of guilt. However, this is simply argument over what inference should be drawn from this circumstance and does not establish that as a matter of law the circumstance does not give rise to an inference of guilt.
In any event, it is not reasonably probable that the jury would have acquitted the defendant in the absence of this flight instruction, because it leaves for the jury to determine whether the defendant in fact manifested any behavior that amounted to flight and the weight to accord it. (People v. Crandell (1988) 46 Cal.3d 833, 870.)
III
Shortly before the parties rested, the trial court dismissed a juror because a coworker inadvertently provided extrajudicial information relating to the defendant’s guilt of the offense. The juror had not shared this information with the rest of the jury. The court nonetheless admonished the remaining jurors that it had excused the juror for hearing information “about a witness or a potential witness in this case”; therefore “if anybody starts talking to you about this case, stop it. Turn around. Walk away. Put on your jogging suits . . . . We don’t want to lose a couple more [jurors] and have to start this case over again[.]”
After the jury returned its verdict, the defendant moved for a new trial on the basis of jury misconduct. According to juror No. 6’s declaration, juror No. 3 announced during deliberations that one of her coworkers “‘was the ex-Controller at Camp Richardson for 6 months prior to” the defendant’s supervisor, and had quit because “‘one of the clerks had their [sic] hands in the safe much too often,’” therefore juror No. 3 “‘[knew] how [she was] going to vote.’” Juror No. 6 also stated that “in the jury box and in [the] jury room” juror No. 5 had read quick reference books on the Constitution and “government and court case procedures” during the first two weeks of trial. The parties submitted the matter on their briefs. The court detailed its reasoning denying the motion in a lengthy oral ruling. As to juror No. 5, the court concluded there was an absence of any evidence to show that the juror had been reading during testimony or that the contents of the books related to any issue in the case. The court did not find juror No. 3’s announcement at the start of deliberations of her opinion that the defendant was guilty to be misconduct. As for her imparting the extrajudicial information about unspecified people embezzling from the victim, this was misconduct but it did not give rise to the substantial likelihood of prejudice to the defense that others had committed the embezzlement for which the defendant was on trial. The defendant contends that the trial court erred in denying this motion.
The People contend for the first time on appeal that this is hearsay evidence, which cannot impeach a verdict. (People v. Williams (1988) 45 Cal.3d 1268, 1318-1319.) They do not provide any authority allowing them to raise the issue in the absence of a contemporaneous objection in the trial court, which ordinarily allows consideration of otherwise incompetent evidence on appeal. (People v. Panah (2005) 35 Cal.4th 395, 476.)
The defendant does not address this issue on appeal, so we deem it abandoned.
For this reason, the court declined to question juror No. 6.
A trial court must first determine if a motion for a new trial based on juror misconduct is supported with admissible evidence. It then determines if admissible evidence establishes misconduct, and whether the misconduct was prejudicial (People v. Garcia (2001) 89 Cal.App.4th 1321, 1338.) While cases state that we review a trial court’s ruling on the motion for an abuse of discretion, we in fact exercise our independent review of the ultimate issue of prejudice. (Ibid.; People v. Ramos (2004) 34 Cal.4th 494, 520.)
People v. Williams involved a juror who had read aloud portions of Paul’s epistles to the Corinthians and the Romans during the jury’s penalty deliberations in a capital case. (People v. Williams (2006) 40 Cal.4th 287, 330-331.) The trial court did not find that the contents of these Biblical passages dictated any particular result on the choice of penalty to impose and that the jury had not discussed them; as a result, the passages did not present a substantial likelihood of prejudice. (Id. at p. 332.) Williams agreed that the nature of the misconduct was not inherently and substantially likely to influence the jury given the contents of the passages, nor was actual bias against the defendant substantially likely in the light of surrounding circumstances (one juror had admonished the rest about considering the passages, there was not any further discussion of them, and the vote on penalty after reading them aloud was unchanged). (Id. at pp. 334-335.)
In the case before us, the defendant did not produce any evidence of the contents of juror No. 5’s readings. Absent any objective showing that the contents of the readings intruded impermissibly into the issues at trial or deliberations, the defendant fails to carry her burden of establishing either that misconduct occurred, or that it was inherently or actually prejudicial.
Indeed, the defendant does not present any authority that merely reading outside materials, such as newspapers, magazines, novels, or “quick reference” books is misconduct per se without evidence of the contents of the materials. It is misconduct only where a juror reads any materials connected with the subject matter of the trial. (People v. Pinholster (1992) 1 Cal.4th 865, 924.)
The defendant is also incorrect that the People have conceded the presence of misconduct in connection with juror No. 5, and has not provided any authority that such an improvident concession would bind this court.
Turning to juror No. 3, the defendant disputes the trial court’s finding that imparting extrajudicial information did not result in any prejudice. She claims that “the context of the statement and [j]uror Number 3’s ultimate vote . . . [left] no doubt [that] the reference was to [the defendant]. In addition, the evidence presented at trial showed that [the defendant] was the only clerk present right before [her supervisor] arrived.” She therefore argues that it is inherently and substantially likely that this extrajudicial information actually biased at least juror No. 3.
The jury was aware from the defendant’s testimony that six months before the arrival of the finance director, the defendant was working for a supervisor with the title of controller with two other coworkers who had access to the cash vault, and more importantly that the defendant did not have access to the cash vault at this time. The extrajudicial statement therefore could not implicate the defendant in any manner, and the trial court was correct in ruling that it was neither inherently prejudicial nor substantially likely to induce actual bias against the defendant.
The time frame specified by juror No. 3’s declarant excludes the brief successor to the controller.
IV
During defense counsel’s examination of her expert witness, she asked whether “based upon your review of the documents . . . have you been able to develop an opinion based upon that evidence and that information?” The expert responded, “My opinion is that [the defendant] didn’t take the money.” The court sustained the prosecutor’s objection that this was an “improper conclusion” and struck the testimony, ruling that “It’s up to the jury to decide.” Defense counsel then asked whether the expert believed someone other than the defendant could have taken the money, which the court on its own motion held was a question that had been “asked and answered six times already.” The defendant now argues that it was reversible error to exclude the expert’s opinion on the defendant’s guilt.
A party may not object to the opinion of an expert witness merely because it relates to an “ultimate issue” that the trier of fact must decide. (Evid. Code, § 805.) It may, however, be excluded on the ground that it does not “assist” the trier of fact. (Id., § 801, subd. (a).) We review a court’s ruling on the admission of expert testimony for an abuse of discretion. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972 (Piscitelli).) Even if we find an abuse of discretion in excluding testimony of a defense expert, we will reverse judgment only if it is reasonably probable that the defendant would have obtained a more favorable result in the absence of the error. (People v. Humphrey (1996) 13 Cal.4th 1073, 1089 (Humphrey).)
“A bright line cannot be drawn to determine when opinions that encompass the ultimate fact in the case are or are not admissible.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) At one extreme, an expert may not offer an opinion that a defendant is innocent or guilty. (See People v. Clay (1964) 227 Cal.App.2d 87, 98-99.) The expert, however, may offer an opinion that the defendant’s conduct was consistent with a particular technique for committing a crime, even if this is essentially the same as offering a conclusion on innocence or guilt. (Id. at pp. 92-93, 99 [defendant’s behavior consistent with “till-tapping”]; People v. Hardy (1969) 271 Cal.App.2d 322, 326-327 [same]; see 2 Jefferson, Evidence Benchbook (2d ed. 1982) § 29.7, p. 1033.) Nonetheless, there are still cases that caution against allowing an expert to “usurp” the function of the jury. (Humphrey, supra, 13 Cal.4th at pp. 1099-1100 [expert on battered spouse syndrome may give opinion on possible reason for defendant’s action, but cannot offer opinion on whether action was reasonable for purposes of self-defense]; Piscitelli, supra, 87 Cal.App.4th at pp. 973-974 [expert in malpractice action may not give opinion on issue of whether the plaintiff would have prevailed in the underlying action; it is reserved for trier of fact].)
The basis for the objection and the ruling in this case is unclear. If premised merely on the opinion embracing an ultimate issue, it was error. If premised on the absence of any real assistance to the jury, it would not be an abuse of discretion. (See 2 Jefferson, Evidence Benchbook, supra, § 29.7, p. 1033.)
Whether or not the court erred, however, the defendant is not entitled to reversal of the judgment. The credibility of the defense expert was questionable at best after being forced to explain to the jury that his original opinion--in which he concluded that only a negligible amount of money was missing from the victim--was incorrect because he realized at trial that he had been double counting, and there was in fact about $75,000 missing. Moreover, at various points the defense expert offered his opinions that “any of the employees who had physical access as well as access to the accounting system [could have changed] those numbers and [taken] cash”; that the defendant’s coworkers had the skills necessary to do this; and that the defendant’s lifestyle did not reflect the embezzled funds. We are convinced even beyond a reasonable doubt that allowing him to opine yet again that the defendant did not embezzle the funds would not have affected the jury’s resolution of the issue.
V
“Under normal circumstances, [the defendant] submits that the following issues might not have merit on appeal. However . . ., [the defendant] contends the [prejudicial effect of the previous] errors . . . are compounded by ineffective assistance of counsel . . . .” Given that the premise of the defendant’s arguments regarding ineffective assistance of trial counsel is nonexistent because we have not found any prejudicial error, we should simply reject the three arguments under this heading. However, as they are easily refuted, we address them seriatim.
A
The prosecutor called a witness in rebuttal who had employed the defendant a decade earlier for approximately a year, who also knew one of the defendant’s coworkers for 13 years, and who had lived in the South Lake Tahoe community since 1970. In her opinion, the defendant was dishonest and had a reputation in the community for dishonesty, while the defendant’s coworker was honest. Defense counsel did not object to this testimony. When the prosecutor called another rebuttal witness on the same issue, the court excused her after a bench conference without her offering any opinion. The defendant contends the failure to object to this testimony was ineffective assistance of counsel.
A failure to object seldom establishes incompetence on the part of defense counsel for purposes of direct appeal. (People v. Catlin (2001) 26 Cal.4th 81, 165.) The defendant cites the prohibition on use of “evidence of a [defendant]’s character . . . (whether in the form of an opinion[ or] evidence of reputation[)] . . . when offered to prove . . . her conduct on a specified occasion” except when “[o]ffered by the prosecution to rebut evidence adduced by the defendant” of her “conduct in conformity with such character” (Evid. Code, §§ 1101, subd. (a), 1102, italics added), and asserts any reasonable attorney would have objected on this ground. However, these provisions relate only to proof of a defendant’s conduct; the proper focus is instead on the provisions relating to attacks on the credibility of a witness (id., § 780, subd. (e) [“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness . . . [h]is character for honesty or veracity or their opposites]; People v. Harris (1989) 47 Cal.3d 1047, 1081; People v. Stern (2003) 111 Cal.App.4th 283, 296-297 [distinguishing between use of character evidence to prove conduct and to attack the credibility of a witness; also holding that restrictions on use of character traits other than honesty or veracity to attack credibility (Evid. Code, § 786) are abrogated].)
The defendant had testified in her own behalf before the prosecutor called the rebuttal character witness. Having done so, she put her reputation for truth and honesty into issue and subjected herself to the usual methods of testing her credibility. (People v. Taylor (1986) 180 Cal.App.3d 622, 631-632 [also noting abrogation of rule prohibiting evidence of good character until character attacked]; People v. Gordon (1928) 206 Cal. 29, 34.) As a result, trial counsel was entirely correct in failing to object to the evidence of the defendant’s reputation for honesty.
In her reply brief, the defendant suggests this evidence was stale. We do not entertain arguments raised for the first time in a reply brief without good cause. (Beane v. Paulsen (1993) 21 Cal.App.4th 89, 93, fn. 4.)
B
On appeal, the defendant contends her trial counsel was incompetent for failing to request a continuance after the defense expert retracted his opinion that the money was not missing from the victim’s accounts. For purposes of direct appeal on a record silent as to the basis for a challenged action or dereliction, we will find ineffective assistance of counsel only where there cannot be any satisfactory reason for it. (People v. Pope (1979) 23 Cal.3d 412, 426.) In the case before us, it is entirely reasonable to conclude that trial counsel, having heard the basis for the change of her expert’s opinion, realized that the expert was correct and there would not be any point in seeking yet another expert to reach the same conclusion (or even worse, given the inexactness of the data with which to work, a figure of a greater loss). The claim therefore fails.
C
Finally, the defendant contends that trial counsel should have sought a hearing to challenge the amount of restitution recommended in the probation report ($112,675). Once again, on a silent record we can posit a plausible basis for the supposed dereliction. The resort filed an analysis of the actual cash loss and the costs of its expenses in proving the loss, including the invoices of the resort’s outside auditor and the timesheets of the resort’s employees showing the hours worked in preparation for trial. In light of the meticulous basis for the restitution request, trial counsel reasonably could have concluded that it would not serve any purpose to challenge the figures. Indeed, appellate counsel does not identify any perceived inaccuracies or any excessive expense. The argument therefore fails.
Admixed under this heading is a suggestion that trial counsel failed to preserve unspecified “federal” claims the defendant “might be able to make in the future.” To the extent this reflects the next argument, we do not need to address it here. We otherwise deem the point to be impermissibly tangential (People v. Gunder (2007) 151 Cal.App.4th 412, 417, fn. 4) and lacking adequate argument (People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 10).
VI
The defendant “makes [an] abbreviated constitutional argument merely to preserve any federal constitution[al] claim she may have with respect to the sentencing enhancement . . . for victim restitution.” This abbreviated argument purports to find support in recent decisions of the United States Supreme Court for a claim that only a jury can set the amount of restitution on proof beyond a reasonable doubt.
Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] held only that the imposition of an upper term based on facts that were not proven beyond a reasonable doubt to a jury would be an unconstitutional increase in punishment in excess of the then-existing statutory maximum. (Id. at pp. ___, ___ [166 L.Ed.2d at pp. 868, 873-876].)
Victim restitution is not a penalty but a civil remedy that a court is empowered to order in a criminal matter, that is enforceable as a civil judgment, and that is limited only by the victim’s claimed amount of loss. (Pen. Code, § 1202.4, subds. (a)(1), (a)(3)(B), (f), (g); § 1214, subd. (b); cf. People v. Harvest (2000) 84 Cal.App.4th 641, 647, 649-650 [restitution not a form of punishment subject to double jeopardy restrictions].) Since it is not punishment, the defendant’s reliance on these federal cases is inapt. (People v. Benitez (2005) 127 Cal.App.4th 1274, 1278 [decision whether to grant probation].)
Furthermore, the right to a jury determination of facts beyond a reasonable doubt applies only to a penalty in excess of that which a judge could otherwise impose based solely on the facts reflected in the jury’s verdict. (United States v. Booker (2005) 543 U.S. 220, 232-233 [160 L.Ed.2d 621].) The only limit on the amount of restitution that a trial court may order upon conviction is the amount of the victim’s loss. In light of the absence of an upper limit on restitution, the defendant’s invocation of these federal cases is again inapt. (Cf. People v. Urbano (2005) 128 Cal.App.4th 396, 405-406 [imposition of restitution fine within statutory range does not require jury findings beyond a reasonable doubt].)
Disposition
The judgment is affirmed.
We concur: MORRISON, J., HULL, J.