Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIF145204, Michael B. Donner, Judge.
Julie Sullwold, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Sometime between March and April 2008, defendant Christina Relea Lee took checks from her parents’ personal checkbook and subsequently helped her boyfriend cash several of the checks at banks located in Riverside and San Bernardino Counties. Defendant was convicted of possession of stolen property, burglary, and possession of a completed check with the intent to commit fraud.
Defendant claims on appeal:
1. The trial court erred by failing to include in CALCRIM No. 375 that all “other acts” committed by her and admitted into evidence were included in the instruction.
2. Her sentence for possession of a check with the intent to defraud should be stayed under Penal Code section 654.
3. The restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (f) should be stricken.
I
PROCEDURAL BACKGROUND
Defendant was found guilty of possession of receiving stolen property (Pen. Code, § 496, subd. (a)); burglary (§ 459), and possession of a completed check with the intent to commit fraud (§ 475, subd. (c)).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court granted defendant’s motion to dismiss a fourth count that constituted an additional charge of possession of a completed check with the intent to defraud (§ 475, subd. (c)) pursuant to section 1118.1.
Defendant, after waiving her right to a jury trial, admitted she had served one prior prison term within the meaning of section 667.5, subdivision (b).
The trial court imposed the upper term of three years on the burglary, plus one year for the prior prison term prior. On the possession of a completed check charge, defendant was sentenced to eight months, which was ordered to run consecutive to the sentence on the burglary. The remaining sentence was stayed. Defendant received a total sentence of four years eight months.
II
FACTUAL BACKGROUND
Rick and Laurie Vander Meer lived in Mira Loma in Riverside County. Laurie had two daughters, defendant and Alicia. Rick was the girls’ stepfather but had raised them since they were very young. Rick and Laurie had a personal checking account at Bank of America. Rick also had two business accounts at Bank of America that he shared with his mother, Lucille. The business accounts were in the name of Lake Agri Enterprises and were for his two businesses, Foothill Feed and R&L Feed.
The victims’ last name appears styled in different ways throughout the record: Vandermeer, VanderMeer, and Vander Meer. We choose to use the styling shown on the victims’ personal checking account, which is Vander Meer. Since a number of the principals in this case bear that name, we will refer to them by their first names in order to avoid confusion. No disrespect is intended.
In March or April 2008, Lucille contacted Rick regarding a check written on the business account to a person named Jason Carrillo. Rick had not written the check and did not know Carrillo.
Rick called Bank of America to check on all of his accounts and discovered that the bank account he shared with Laurie had a lower balance than it should. He then discovered that there were random, nonsequential checks missing from his checkbook. He had not previously noticed any checks missing. This checkbook was kept in their bedroom, which was kept locked except when they were home and going in and out of the room. They kept it locked (with only Rick and Laurie possessing keys) because jewelry and money had been disappearing from their bedroom.
In March and April 2008, Alicia lived in the Vander Meer home and had access to the checkbook. Defendant had been kicked out of the house in December 2007 due to the money missing from the Vander Meers’ bedroom. They suspected both girls but had only kicked defendant out because Alicia had two young children.
Rick and Laurie had reviewed the unauthorized checks written on their personal account. They bore what appeared to be Rick’s signature, but he had not signed them. No one else was authorized to write checks on the account. Rick suspected that defendant had taken the checks.
According to the exhibits, eight checks were written on the personal checking account to Carrillo as follows: exhibit 1 (check No. 3424 for $400 dated March 27, 2008); exhibit 2 (check No. 3419 for $450 dated March 28, 2008 with the notation of “repairs”); exhibit 3 (check No. 3409 for $1,100 dated March 28, 2008 with the notation “house remodel”); exhibit 4 (check No. 3414 for $1,311 dated March 30, 2008); exhibit 5 (check No. 3412 for $1,400 dated March 30, 2008, with the notation “mat. remodel”); exhibit 6 (check No. 3425 for $500 dated April 1, 2008); exhibit 7 (check No. 3413 for $7,400 dated April 2, 2008); and exhibit 8 (check no. 3448 for $5,000 dated April 5, 2008, with the notation “last payment”) (collectively, the eight checks). Rick did not write any of the eight checks.
Although both parties repeatedly refer to the exhibits in their briefs, neither party had them transferred to this court. On our own motion, we have had exhibits 1 through 13 and 15 transferred.
Check Nos. 3424 and 3419 (exhibits 1 and 2) were cashed at the Eastvale branch of Bank of America in Riverside County. All the other checks (exhibits 3 through 8) were cashed at the Rancho Cucumonga branch of Bank of America in San Bernardino County. Rick signed a declaration that the eight checks had been forged.
These are the only two checks for which defendant was on trial in counts 2 and 3.
Laurie was interviewed by Riverside County Sheriff’s Detective Brett Johnson. He showed Laurie exhibits 9 and 10. Exhibit 9 was a series of still photographs from the Rancho Cucamonga branch of Bank of America that showed a man cashing a check (check No. 3409 (exhibit 3)) on March 29, 2008. He was the man believed to be the person who represented himself as Jason Carrillo. He was with a female. Exhibit 10 showed the same woman standing next to the same man while he was cashing check No. 3424 (exhibit 1) at the Eastvale Banking Center on March 28, 2008.
Exhibits 9 and 10 are still photos taken from video surveillance at the banks where the checks were cashed. The photos were obtained by a fraud investigator for Bank of America.
Laurie identified the female accompanying the man cashing the checks in both exhibits 9 and 10 as defendant. She could not identify the man who cashed the checks.
Rick had not seen defendant in his home in March or April 2008, but he was often at work. After the checks were discovered missing, Alicia told Rick that defendant had been at the house.
Laurie initially told police that, when she first discovered the stolen checks, she suspected defendant. Defendant’s handwriting was similar to Rick’s. A few weeks prior to the discovery of the missing checks, Alicia had told Laurie that defendant had called and asked her to take checks out of the checkbook in sporadic order. At trial, Laurie expressed doubt as to what Alicia had said and indicated she now thought defendant was not the person who took the checks. Alicia and defendant did not get along. Laurie now suspected that Alicia had taken the money, because Alicia had purchased a new car after the theft that had prompted the locking of the bedroom door.
Jason Carrillo was defendant’s boyfriend. Photographs at the banks were matched to Carrillo’s Department of Motor Vehicles photograph. Carrillo opened up a bank account at Bank of America on April 1, 2008.
Counterfeit checks were also written on Rick’s business accounts to Carrillo. Exhibits 11 and 12 were video surveillance photographs that showed persons other than defendant and the man in exhibits 9 and 10 cashing checks at the Eastvale branch on March 29 and 31, 2008. The other persons in the photographs cashing the remainder of the eight checks were never identified.
Exhibit 13 was check No. 8540 written on the account held by Lake Agri Enterprises Inc. doing business as R&L Feed. It bore the signature of Rick Vander Meer and was made out to Jason Carrillo in the amount of $5,196.09. Rick had not signed the check, and it was not the same kind of check that was used on the account. The style and check stock were different.
Exhibit 14 was check No. 24111 drawn on Lake Agri Enterprises Inc./Foothill Feed in the amount of $982 made out to Dawn Hernandez and purportedly signed by Rick. The check was dated April 25, 2008, and was cashed on April 28, 2008. Rick had not written that check. Exhibit 15 was check No. 24302 in the amount of $396.09, drawn on the Lake Agri Enterprises Inc./Foothill Feed account. It was dated April 21, 2008, and made out to Carrillo.
Both checks in exhibits 14 and 15 were counterfeit. The jury was shown legitimate checks drawn on the account. The three business account checks were cashed outside of Riverside County.
Rick was returned the funds from the checks in exhibits 13, 14, and 15 by the banks. He surmised that the counterfeit checks were made after looking at business checks he kept in the garage. Any person could access the checks in the garage, including defendant and Alicia. In February 2008, Laurie had found Carrillo “rooting around” in the garage on two occasions.
Carrillo was married to Dawn Hernandez. Hernandez had allowed defendant to stay with her and Carrillo in Barstow but had kicked them out when she found out they were involved in an intimate relationship. Hernandez identified both defendant and Carrillo in exhibit 10.
Hernandez recalled that in late April 2008, Carrillo had asked her to meet him at a motel. When she arrived, both Carrillo and defendant were at the motel. Defendant gave Hernandez a check in the amount of $982 drawn on Lake Agri Enterprises account (exhibit 14). Defendant asked Hernandez to cash the check for her, claiming she did not have identification. Hernandez deposited the check into her account in April 2008 in a bank in San Bernardino County. She then gave the cash to defendant. The check was counterfeit.
A few days earlier, Hernandez cashed a check in the amount of $500 for defendant in Barstow. She gave the money to defendant.
Riverside County Sheriff’s Detective Philip Matheny investigated a case in 2000 involving defendant pawning jewelry that belonged to Laurie. Defendant had admitted stealing the jewelry.
III
CALCRIM NO. 375
Defendant contends for the first time on appeal that the trial court erred in its instruction to the jury with CALCRIM No. 375, which specifically identified that the only other uncharged act admitted into evidence was the theft of jewelry from Laurie in 2000. Defendant claims that the trial court should have instructed the jury that the other uncharged acts also included the checks that were cashed in Rancho Cucamonga, the business checks, and the money taken from the Vander Meers’ bedroom, and they could only be considered as they related to her intent, plan, or knowledge. Defendant claims that she was prejudiced because the jury used the other offenses as evidence of her character and to prove her conduct on the substantive offense.
A. Additional Factual Background
During trial, defendant objected to the admission of any checks cashed in Rancho Cucamonga because the counts had been dismissed from the complaint based on an erroneous belief by the People that there was no jurisdiction to hear the matters in a Riverside court. The People argued the offenses were relevant to defendant’s knowledge and to show that she was involved in a transaction with Carrillo. The trial court addressed the issue, referring to Evidence Code section 350, which allows for admission of evidence to show motive, state of mind, pattern of conduct, and intent. Defendant continued to argue the evidence was irrelevant to the current case because the People chose to dismiss those counts.
The trial court overruled the objection: “I believe it does go to the defendant’s state of mind, her motive, the course of conduct that’s involved in this case. And then you can argue, of course, the converse of that of her being in the presence of somebody doesn’t necessarily prove anything, which is a legitimate and honest argument.” Later, the trial court clarified that it was admitting the checks cashed outside of Riverside County to show “opportunity, intent, preparation, plan, knowledge.”
Prior to the case going to the jury, the trial court dismissed a fourth count of possessing a completed check with the intent to defraud, which was related to the passing of the business checks, due to lack of evidence of possession of a completed check in Riverside County. However, the trial court allowed the exhibits of the business checks to go to the jury for the purpose of showing knowledge and intent on the charged counts.
The jury was instructed with a modified version of CALCRIM No. 375 as follows: “The People presented evidence that the defendant stole her mother’s jewelry. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the act. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the act, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to commit a theft or forgery in this case; or [¶] The defendant knew that the checks were stolen or forgeries when she allegedly acted in this case; or [¶] The defendant had a plan to commit the offenses alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged act and the charged offenses. [¶] Do not consider this evidence for any other purpose except for the limited purpose of the defendant[’]s knowledge or intent. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the act, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Burglary, Possession of stolen property or Possession of a completed check with the intent to defraud. The People must still prove each charge beyond a reasonable doubt.”
B. Analysis
Defendant essentially claims that although the trial court instructed the jury with CALCRIM No. 375, it improperly modified the instruction to only include the uncharged act of taking her mother’s jewelry. The People contend that defendant waived her claim by failing to object to the jury instruction in the trial court. When a final draft of the jury instructions was prepared, defendant made no objection to them. Defendant’s failure to object in the trial court waives the claim on appeal. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [failure to object to an instruction in the trial court waives the claim on appeal unless the claimed error affected the substantial rights of the defendant].)
Defendant argues that the trial court had a sua sponteduty to correctly instruct the jury once it admitted the Evidence Code section 1101, subdivision (b) evidence. However, the California Supreme Court has long held that “‘“in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.”’ [Citation.]” (People v. Hinton (2006) 37 Cal.4th 839, 875.) Defendant argues this is the extraordinary case in which the other evidence so dominated the case and the evidence was so prejudicial that a sua sponteduty to instruct arose. It is true that the California Supreme Court has stated “‘that there might be “an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose, ”’” to warrant a sua sponte instruction. (Ibid.) Although the other acts in this case did constitute a dominant part of the evidence, the evidence was not highly prejudicial and was at least minimally relevant to show defendant’s inextricable involvement in the possession and negotiation of the eight checks. Moreover, the evidence was no more prejudicial than the evidence of the charged crimes. As such, defendant has waived her claim on appeal. We briefly discuss the merits of defendant’s claim (since we find no prejudice) in order to foreclose defendant’s claim of ineffective assistance of counsel and to dispel that defendant’s substantial rights were affected.
Evidence of prior crimes is not admissible to prove the defendant’s propensity to commit the charged offense. (Evid.Code, § 1101, subd. (a).) Evidence Code section 1101 provides, in relevant part: “(a) Except as provided in this section and in [Evidence Code] Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
In order to assess whether the trial court should have even given CALCRIM No. 375 as to evidence of the business checks, the Rancho Cucamonga checks, and the theft of money from the Vander Meers’ bedroom, we must determine for what purpose the evidence was introduced.
The evidence of defendant’s possession of and subsequent cashing of checks on the Vander Meers’ personal and business accounts was admitted for several reasons. Initially, the evidence supports that all of the personal checks taken by defendant comprised the crime in count 1, receiving stolen property. Although defendant maintains that the checks possessed and cashed in Rancho Cucamonga were not introduced as substantive evidence of the crime in count 1, reviewing the record shows that the People to some extent relied on these other checks both to support count 1, and to show her intent in counts 2 and 3. Although the trial court initially introduced the evidence to show defendant’s intent and knowledge, when the People argued that they all showed her guilt in count 1 for receiving stolen property, there was no objection by defendant.
However, the Rancho Cucamonga checks, the business checks, and the money taken from the Vander Meers’ bedroom were introduced to show her intent, knowledge, or plan to commit the burglary and possession of a check with the intent to defraud. Clearly, the admission of evidence regarding the money stolen from the room and the business checks was not substantive evidence of the crimes committed. As such, at the very least, the trial court should have included with its instruction on CALCRIM No. 375 the business checks and money stolen from the Vander Meers.
However, any error in failing to give a limiting instruction to the jury was clearly harmless. Any error in failing to instruct the jury on how to use propensity evidence is reviewed under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Falsetta (1999) 21 Cal.4th 903, 924-925.)
The People argued in their closing argument the receiving stolen property count referred to the eight checks that were taken from the Vander Meers. However, they also argued, “Now we’ve alleged that a good many checks were stolen. All right. Some of these checks weren’t cashed in Riverside County. And, again, we allege these checks so that you can see there was a pattern here. It wasn’t just a mistake or an accident. But you can use those other checks and you can use some of the other information that you heard... about the stolen jewelry and what not to consider what the mindset was of the defendant. [¶] Now, understand, you can’t use that information to say well, she did it before, she did it again. You can’t do that. Okay. You have to decide this case on its facts. But you can use that information to decide whether or not she had intent, whether or not she had knowledge.” The People also referred to the counterfeit checks given to Hernandez as showing defendant’s knowledge and intent.
The People advised the jury that the two checks that were cashed in Riverside were check Nos. 3424 and 3419. Otherwise, all of the other checks could be used to show “knowledge, lack of mistake.... Intent.” The People suggested they look to check No. 3424 because it matched the photographs with defendant.
Defense counsel argued that the business checks were only coming in to show that defendant knew what was happening in this case. Counsel argued that the three men in the photographs were responsible for the thefts; defendant herself had no knowledge of any of the transactions. In response, the People stated, “What happens in Barstow [the checks negotiated by Hernandez] in this case is important because it helps lend credibility to the idea that she had knowledge.” The People also argued the jury could find defendant guilty of all three counts on check No. 3424.
Based on the argument of both counsel, the jury was made keenly aware that any checks cashed or any burglary that may have occurred outside of Riverside County could only be considered as it related to defendant’s intent and knowledge. It could not be considered to prove defendant’s guilt.
Defendant claims that, since the jury was instructed that the argument by the attorneys was not evidence, it disregarded the People’s argument. The jury was instructed, “If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” However, the argument by both counsel did not conflict with the instructions. Although a modified version of CALCRIM No. 375 only included the jewelry theft, it did not exclude all other uncharged acts. Further, the People were not arguing different evidence than what was presented during trial, but rather how such evidence should be evaluated.
The jury was also instructed, “Remember[] that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.” This instruction informed the jury it must only rely on evidence presented to support the charged crime.
Finally, the evidence of defendant’s guilt of the offenses occurring in Riverside County was overwhelming. Defendant was convicted of stealing money from her own parents’ bank account, and her boyfriend was seen cashing the checks. There was no conflicting evidence presented (short of speculation) that anyone but defendant took the checks from her parents’ bedroom. Check No. 3424 was cashed by Carrillo in Riverside County while defendant stood right next to him. The People advised the jurors that all three counts could be supported by check No. 3424 alone. The evidence of defendant’s guilt of possession of stolen property, burglary, and possession of a check with the intent to defraud in Riverside County was overwhelming.
As alluded to, ante, defendant makes a brief argument that she received ineffective assistance of counsel for her counsel’s failure to request that CALCRIM No. 375 be applied to all of the uncharged acts. Regardless of whether counsel should have requested the instruction, defendant has failed to show that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) As set forth, both the People and defendant argued in closing that the evidence of the other checks, the theft of money, and the counterfeit business checks should be considered in only a limited way. Further, the evidence of defendant’s guilt of the charged crimes was overwhelming. Defendant has not shown that she was prejudiced by the instruction given by the trial court. We reject defendant’s claims.
IV
Defendant contends that the trial court erred by imposing a consecutive sentence on count 3, the possession of a check with the intent to defraud, to the charge of burglary as punishment on the count was barred by section 654.
The information charged defendant with possession of personal checks by theft in March and April 2008. Count 2 involved the burglary at the Bank of America occurring on March 28, 2008. Count 3 charged a range of dates from March 2008 through April 2008.
The trial court explained to the jury in the instructions that count 1 was based on defendant’s possession of stolen checks from the Vander Meers’ personal checking account sometime between March and April 2008. The jury was also instructed as to count 3 that defendant possessed a check with the intent to defraud between March and April 2008. The jury was given a unanimity instruction that it must decide on one act to prove defendant committed count 3. Defendant was convicted of all counts.
At the time of sentencing, the trial court chose the upper term for the burglary. It then stated, “As far as the violation of Penal Code Section 475, subdivision (c) [count 3], I am sentencing the defendant to... one-third the mid term, which would be eight months. As far as the violation and conviction on Penal Code Section 496, subdivision (a) [count 1], I sentence the defendant to one year, which is stayed, pursuant to Penal Code section 654.”
Defendant contends that all three counts were committed with one single intent: to take the Vander Meers’ money from Bank of America. The People concede that the sentence on count 3 should have been stayed. However, they contend that remand for resentencing is warranted, as the trial court erred by staying the sentence on count 1, which constituted a separate crime with a different objective than the burglary.
Ordinarily, if a sentence is illegal or unauthorized it may be vacated and corrected whenever the error comes to the attention of the trial court or any reviewing court. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; People v. Price (2004) 120 Cal.App.4th 224, 241, fn. 25.) Section 1238, subdivision (a)(10) authorizes a cross-appeal by the People from the “imposition of an unlawful sentence, ... except that portion of a sentence imposing a prison term which is based upon a courts choice that a term of imprisonment... be consecutive or concurrent to another term of imprisonment, unless an applicable statute requires that the term be consecutive.” The People did not file a notice of appeal in this case. Absent an appeal by the People, we can only review a sentence if it is unauthorized. (People v. Smithson (2000) 79 Cal.App.4th 480, 502-503; People v. Crooks (1997) 55 Cal.App.4th 797, 811.) To constitute an unauthorized sentence, the term imposed must be one that “could not be lawfully imposed under any circumstances in the case.” (People v. Fond (1999) 71 Cal.App.4th 127, 133.) The error must be “‘“clear and correctable” independent of any factual issue....’” (Ibid.)
Although we may agree with the People’s analysis that count 1 could be imposed consecutively, we cannot conclude that the trial court erred as a matter of law by staying the sentence on count 1. Although the court improperly imposed sentence on count 3, it clearly stayed the sentence on count 1. The trial court could reasonably conclude that counts 1 and 2 were committed with one intent and objective. “The reviewing court cannot substitute its reasons for those omitted or misapplied by the trial court, nor can it reweigh valid factors bearing on the decision below. [Citations.]” (People v. Scott (1994) 9 Cal.4th 331, 355.) The record supports staying the sentence on count 1, and the People’s failure to file their own appeal waives their claim that the case should be remanded to the lower court for resentencing.
As such, we will only order that defendant’s sentence be modified to stay the sentence on count 3.
V
RESTITUTION FINE
Defendant contends (for the first time on appeal) that the restitution fine of $22,746 ordered payable to Bank of America should be stricken in its entirety. The People concede that $5,196.09 of the fine should be stricken but argue the remainder of the fine was properly imposed.
A. Factual Background
According to the probation report, Bank of America had suffered losses totalling $22,746, and restitution was appropriate under section 1202.4, subdivision (f). This amount consisted of the eight checks (exhibits 1-8) written on the personal account of the Vander Meers and the $5,196.09 counterfeit check drawn on the Vander Meers’ business account (although the trial court had dismissed the count pertaining to the business checks). Only exhibits 1 and 2 were for checks cashed in Riverside County. The remaining personal checks were cashed at the Rancho Cucamonga branch in San Bernardino County.
At the time of sentencing, the trial court imposed the restitution fine as follows: “I’m ordering the defendant to pay restitution to the Bank of America in the sum of $22,746.” There was no objection.
B. Analysis
“Article I, section 28, subdivision (b) of the California Constitution guarantees ‘all persons who suffer losses as a result of criminal activity... the right to restitution from the persons convicted of the crimes for losses they suffer.’” (People v. Lai (2006) 138 Cal.App.4th 1227, 1246.) “The intent of the voters is plain: every victim who suffers a loss shall have a right to restitution from those convicted of the crime giving rise to that loss. Nothing in the language of the Constitution suggests an intent to limit the right to restitution for financial losses occurring within a particular time frame.... The only qualification is that the loss must be ‘the result of criminal activitiy.’ [Citation.]” (People v. Phelps (1996) 41 Cal.App.4th 946, 950.)
Section 1202.4, subdivision (f) provides in pertinent part that “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” “[S]ection 1202.4 limits restitution to losses caused by the criminal conduct for which the defendant was convicted.” (People v. Lai, supra, 138 Cal.App.4th at p. 1246.) “[S]ection 1202.4 contains no provision that permits an award of restitution for losses caused by uncharged crimes when the defendant is sentenced to state prison.” (Id. at p. 1248.)
The People concede that the restitution order in the amount of $5,196.09 for check No. 8540 drawn on the business account should be stricken because the charge pertaining to the business checks (count 4) was dismissed by the trial court. The People, however, contend (without citation to authority) that defendant has waived her objection to any factual conclusions made by the trial court as to whether the remaining restitution fine was supported by the convictions by failing to object to the award in the trial court. Defendant responds that she has not forfeited her claim because the resulting sentence was unauthorized.
We need not resolve the issue since we find that the trial court did not abuse its discretion in imposing the restitution fine in this case. The People argue that, should we reject their waiver argument, the restitution fine was supported by her conviction of receiving stolen property that was supported by evidence of all of the personal checks stolen (Ex. 1-8).
We review a restitution order for an abuse of discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) “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. [Citation.]” (People v. Dalvito (1997) 56 Cal.App.4th 557, 562 [Fourth Dist., Div. Two].)
“A victim’s restitution right is to be broadly and liberally construed. [Citations.]” (People v. Mearns (2002) 97 Cal.App.4th 493, 500.) But a restitution order “resting upon a ‘“demonstrable error of law”’ constitutes an abuse of the court’s discretion. [Citation.]” (People v. Jennings (2005) 128 Cal.App.4th 42, 49.)
We find that the trial court did not abuse its discretion in concluding that Bank of America was entitled to reimbursement for the eight checks taken from the Vander Meers’ checkbook. The evidence supported that defendant took the checks from her parent’s checkbook. All eight checks were negotiated and resulted in a loss to Bank of America. The People presented the eight checks both as evidence of count 1, and to show defendant’s intent in counts 2 and 3. The trial court had a factual and rational basis for ordering the restitution in this case.
Defendant further claims that the crime of receiving stolen property was completed prior to Bank of America suffering any loss so that the economic loss cannot be attributed to the conviction in count 1. In People v.Mearns, supra, 97 Cal.App.4th 493, the trial court’s award of a restitution fine to a rape victim to pay for a new mobile home so she did not have to live where she was raped was upheld by the appellate court because it was an economic loss due to the criminal conduct of the defendant. (Id. at p. 503.) The economic loss to Bank of America was directly related to defendant being in possession of the stolen checks. We reject defendant’s claim but will order the restitution fine be reduced as set forth herein.
VI
DISPOSITION
We modify the judgment to strike $5,196.09 of the restitution fine ordered pursuant to Penal Code section 1202.4, subdivision (f). We order the clerk of the Riverside County Superior Court to modify the sentencing minute order to reflect the modification. We also order the clerk to modify the sentencing minute order to stay the sentence on count 3. The clerk shall prepare a new abstract of judgment reflecting the sentencing modifications and forward a copy to the California Department of Corrections and Rehabilitation. We otherwise affirm the judgment.
We concur: HOLLENHORST, Acting P.J., CODRINGTON, J.