Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. VA112149-01, Burt Barnett, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Daniel C. Chang, Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Angelina R. Ochoa appeals a restitution order and a probation condition following her guilty plea to grand theft by embezzlement. (Pen. Code, § 487, subd. (a).) We conclude, among other things, that 1) the trial court did not abuse its discretion by awarding restitution in the amount of $107,887.30, but 2) a probation condition in a minute order which prohibits Ochoa from associating with children is not consistent with the sentence the court imposed at the sentencing hearing. We strike the probation condition. In all other respects, we affirm.
FACTS
On September 4, 2009, the loss prevention officer for the All American Home Center (AAHC) informed police that Ochoa, the store manager, was creating false cash refund entries when customers were not present. The officer monitored her activities for two weeks and discovered she made 23 "fraudulent refund transactions totaling $4,062.53." Ochoa confessed that she had been "falsifying returns" and that she "took approximately $20,000 to [$]25, 000."
After her guilty plea, the trial court conducted a hearing on restitution.
Robert Morck, the AAHC chief operating officer, testified that Ochoa began working for the company in 2004. Her thefts started in March 2008. He calculated that between March 2008 and September 2009, she had stolen $118,487.30. He said there "was a course of conduct that... [Ochoa] established, " and "there wasn't a day... Ochoa worked where she did not steal." Ochoa paid back $10,000, and she "signed over her last" paycheck in the amount of $600 back to AAHC.
The prosecution also introduced an "accounting record, " a copy of "refund amounts, " a "cash average record, " and other documents.
Ochoa did not testify and she presented no evidence at the hearing.
The trial court found the loss AAHC sustained was "well document[ed], " and it "might very well be higher than that which is requested by" AAHC. It found "restitution should be in the amount of" $107,887.30.
DISCUSSION
Restitution
Ochoa contends the trial court erred in awarding restitution of $107,887.30, in addition to the $10,600 she had already paid in restitution. She argues that she was charged with, and pled guilty to, embezzling funds for a five-month period. She claims that consequently the court's award of restitution for a 17-month period was unauthorized. We disagree.
"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.) "California courts have long interpreted the trial court's 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." (Ibid.) "'The court may impose and require... [such] reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done....'" (Ibid., italics added.)
Here the restitution order is consistent with the goal of seeking justice for the victim. Ochoa's felony plea agreement does not limit restitution to a five-month time period. Instead, she agreed to "pay actual restitution to any victim." (Italics added.)
The loss AAHC sustained because of Ochoa's embezzlement was $107,887.30. In the felony complaint, the prosecution alleged that she took money from AAHC from April 1, 2009, to September 4, 2009. But the evidence at the restitution hearing showed that her embezzlement was not limited to a five-month period; it involved a pattern of theft for 17 months. Morck testified that she was stealing every day she worked at AAHC, going back to March 2008.
To limit restitution to five months would not compensate AAHC for the actual loss it sustained. Here the trial court was simply ordering Ochoa to pay for the damage she caused. Because the restitution order is directly related to Ochoa's crime and provides compensation for AAHC's actual loss, it falls well within the range of the trial court's authority. (People v. Carbajal, supra, 10 Cal.4th at p. 1121.) Ochoa has not shown an abuse of discretion.
The Condition Precluding Ochoa from Associating with Children
Ochoa notes that the minute order reflects that one of her probation conditions is that she may "not associate with children under the age of 14 unless responsible adults are present."
Ochoa and the Attorney General agree that this condition was not included in the sentence the trial court imposed at the sentencing hearing. A review of the transcript of that hearing reflects that the court never mentioned it. Consequently, the minute order must be corrected and this condition must be stricken. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
The trial court is ordered to correct the minute order to eliminate this condition. In all other respects, the judgment is affirmed.
We concur: YEGAN, J., PERREN, J.