Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. CM015616
OPINION
MORRISON , J.
Defendant Robyn Loree Newell pled no contest to fraudulent use of an access card (Pen. Code, § 484g, subd. (a)), and receiving stolen property (§ 496, subd. (a)). In exchange for her plea, a charge of burglary/grand theft (§ 459) was dismissed. Defendant was initially placed on probation but her probation was revoked for six violations of probation. The trial court sentenced defendant to two consecutive eight-month terms, to run consecutively with a principal term imposed in an El Dorado County case.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court abused its discretion by imposing consecutive terms and erred in imposing $298.21 of the $698.21 victim restitution order. We shall affirm.
BACKGROUND
On February, 15, 2001, defendant used S.T.’s access card to purchase a $200 gift certificate at Miller’s Outpost in the Chico Mall. Defendant told police she had also used the access card that same day to purchase a $200 gift certificate at Fredrick’s of Hollywood. S.T. had accidentally left her purse on the counter at a sandwich shop in Chico earlier that day.
On February 16, 2001, defendant attempted to purchase merchandise at Landlocked Surf Company in the Chico Mall using a credit card belonging to L.S., whose purse had been stolen from her car earlier that day in Chico. The sales clerk denied the purchase because he remembered defendant had attempted to use a card with the name of “Sherry” or “Cheryl” the day before.
Defendant was detained by mall security and later arrested. She claimed she found the cards on the ground in a park. She was released on bail the same day.
S.T. told police that her Chevron gasoline credit card was used between February 16, 2001, and February 18, 2001, to make purchases in the Fairfield, Vacaville and Napa areas, in the total amount of $298.21.
Defendant pled no contest to fraudulent use of an access card and receiving stolen property in exchange for the dismissal of a burglary/grand theft charge. Defendant initialed the provision in the plea form that stated: “(HARVEY WAIVER) I STIPULATE THE SENTENCING JUDGE MAY CONSIDER MY PRIOR CRIMINAL HISTORY AND THE ENTIRE FACTUAL BACKGROUND OF THE CASE, INCLUDING ANY UNFILED, DISMISSED OR STRICKEN CHARGES OR ALLEGATIONS OR CASES WHEN GRANTING PROBATION, ORDERING RESTITUTION OR IMPOSING SENTENCE.” In court, she acknowledged she initialed each paragraph of the plea form, signed the form, and understood its contents.
The probation officer’s report recommended probation and victim restitution to S.T. in the amount of $698.21. The trial court suspended imposition of sentence and placed defendant on probation. One of the conditions of probation was that defendant was to pay $698.21 in victim restitution. Defendant made no objection to the victim restitution order.
On July 30, 2004, a petition for revocation of probation was filed alleging six violations of probation, including allegations that defendant had had three new violations of the law. Defendant admitted the allegations and probation was terminated. The trial court sentenced defendant to two consecutive eight-month terms (one-third the midterm), to run consecutively to a two-year principal term and an eight-month consecutive term in a case out of El Dorado County. In imposing consecutive terms the court stated: “The consecutive order is due to the following. The crimes and their objectives were predominately independent of each other and they were committed different times or places rather than being committed so closely in time and place to indicate a single period of aberrant behavior.”
The court also imposed a $200 restitution fine and a $200 probation revocation fine, and the $698.21 in victim restitution to S.T. Defendant did not object to the victim restitution order. She filed a notice of appeal on November 21, 2005.
DISCUSSION
I
Defendant claims the trial court abused its discretion in imposing consecutive terms. She argues her theft offenses were part of a single period of aberrant behavior. We find no abuse of discretion.
The trial court has discretion to determine whether several sentences are to run concurrently or consecutively and that discretion is not to be disturbed absent a clear showing of abuse. (In re Sandel (1966) 64 Cal.2d 412, 416; People v. Giminez (1975) 14 Cal.3d 68, 72.) “‘[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]’” (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
California Rules of Court, rule 4.425, sets forth the criteria affecting the decision to impose consecutive rather than concurrent terms, and these criteria included whether or not “(1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” The rule also incorporates as criteria “[a]ny circumstances in aggravation or mitigation” with certain exceptions not applicable here. (Subd. (b).)
The facts and circumstances surrounding defendant’s offenses support the trial court’s finding that the crimes and their objectives were predominately independent of each other. When defendant entered the separate stores and used different individuals’ bank cards, she had a separate intent and objective to deprive each victim of a distinct amount of money. Moreover, as noted by the trial court, the crimes were committed on different days and in different places.
Defendant argues that her thefts should be considered one period of aberrant behavior because the separate thefts were both “the result of [defendant’s] drug addiction.” As pointed out by the People, the trial court is not required to accept this characterization simply because defendant was able to formulate a broad statement of intent to explain all her crimes. (See People v. Perez (1979) 23 Cal.3d 545, 552; People v. James (1977) 19 Cal.3d 99, 119 [separate burglaries of different offices in same building may be separately punished]; People v. Williams (1992) 9 Cal.App.4th 1465, 1474; People v. Bowman (1989) 210 Cal.App.3d 443, 448 [consecutive sentences for eight burglaries of buildings and vehicles in car dealership committed as part of an indivisible course of conduct during a single night].) In any event, by her own admission, defendant obtained the gift certificates to support her methamphetamine habit (she intended to trade the certificates for drugs). On the other hand, her attempted theft at Landlocked Surf Company was an attempt to buy shoes for her boyfriend’s children.
Thus, there is more than sufficient evidence to support the trial court’s imposition of consecutive sentences.
II
Defendant also claims the trial court “exceeded its jurisdiction” by ordering the $298.21 in victim restitution based on the use of the Chevron credit card. She argues it was not proven that she used the Chevron credit card and, therefore, the trial court should not have imposed the restitution. Defendant’s attempt to dispute this amount of victim restitution is not cognizable in this appeal.
First, we agree with the People that defendant’s claim has been forfeited. Defendant’s failure to object at the time the trial court imposed the restitution amounts to a waiver of the issue on appeal. (See People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Foster (1993) 14 Cal.App.4th 939, 944, superseded by statute on another ground as noted in People v. Sexton (1995) 33 Cal.App.4th 64, 70; People v. Rivera (1989) 212 Cal.App.3d 1153, 1160.)
Sentencing errors that are not jurisdictional, but instead concern sentences “which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner[,]” are forfeited on appeal if not first raised in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.) The unauthorized sentence exception is “a narrow exception” to the waiver doctrine that normally applies if the sentence “could not lawfully be imposed under any circumstance in the particular case[,]” for example if the court “violates mandatory provisions governing the length of confinement.” (Id. at p. 354, fn. omitted.) That is not the case here.
Restitution may be imposed to reimburse victims for conduct such as that covered by defendant’s Harvey waiver. (See People v. Beck (1993) 17 Cal.App.4th 209, 214-216 [upholding restitution order for counts dismissed with Harvey waiver].) “The phrase ‘Harvey waiver’ means the defendant has agreed that the court may consider facts behind dismissed or uncharged counts” for sentencing purposes. (In re Josh W. (1997) 55 Cal.App.4th 1, 4, fn. 2.) Accordingly, defendant’s sentence cannot be considered “unauthorized.”
People v. Harvey (1979) 25 Cal.3d 754.
To avoid the forfeiture rule, defendant attempts to characterize her claim as one alleging the trial court exceeded its jurisdiction because the restitution was based on the out-of-county use of the Chevron credit card. Defendant, not surprisingly, provides no authority for the proposition that the trial court somehow lacks jurisdiction to order victim restitution for damages that defendant caused outside the court’s county. Thus, we reject defendant’s claim that the trial court exceeded its jurisdiction for this reason.
In any event, even if defendant had not forfeited her claim by failing to raise the issue in the trial court, her claim is untimely in this appeal. The trial court imposed the victim restitution when it granted defendant probation. If defendant wished to challenge the amount of victim restitution ordered, she should have appealed the order granting probation.
Penal Code section 1202.4, subdivision (m) provides: “In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation. Any portion of a restitution order that remains unsatisfied after a defendant is no longer on probation shall continue to be enforceable by a victim pursuant to Section 1214 until the obligation is satisfied.” (Italics added.) Thus, the restitution ordered as a condition of probation survived the revocation of defendant’s probation. (See People v. Chambers (1998) 65 Cal.App.4th 819, 822 [restitution fine imposed as a condition of probation remains survives revocation of probation]; People v. Kleinman (2004) 123 Cal.App.4th 1476, 1479-1481.)
Here, the order fixing the amount of restitution was entered when the trial court granted defendant probation on October 10, 2001 -- four years before defendant filed her notice of appeal. The trial court’s restatement of the victim restitution amount after revocation of probation and upon sentencing defendant to prison did not renew her right to appeal the victim restitution order. Thus, any appeal from the order fixing the restitution is untimely. (See Cal. Rules of Court, former rule 30.1 [now rule 8.308].)
DISPOSITION
The judgment is affirmed.
We concur: SIMS , Acting P.J., HULL , J.