Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS092430.
Premo, J.
Defendant Jason Daniel Potts pleaded no contest to one count of theft of more than $400 by use of an access card. (Pen. Code, §§ 484e, 484g.) The trial court placed defendant on formal probation for three years on the condition, among others, that he pay restitution to the victim in the amount of $4,887.34. On appeal defendant argues that his counsel provided ineffective assistance by failing to object to the trial court’s use of hearsay in determining the amount of victim restitution. We shall affirm.
Further unspecified section references are to the Penal Code.
I. Facts
Defendant, who was 21 years old, began sharing a residence with the 72-year-old victim, Janice Kenny, in March 2009. Kenny was legally blind, living on her Social Security check. She and defendant split the rent on the residence. Defendant also helped Kenny get around because she could not drive. Defendant would take her to the grocery store and on a few occasions she would allow him to use her debit card to make grocery purchases for her.
On October 24, 2009, Monterey County Sheriff’s deputies responded to a call about a disturbance at the Safeway store in Prunedale. A store employee directed the deputies to an area where defendant was observed arguing with Kenny. Kenny informed the deputies that she had recently become aware that defendant had been withdrawing money from her account without her authorization. While at the Safeway she saw defendant at the Wells Fargo counter and discovered that he had just obtained a $500 pay advance on her account. Evidently Wells Fargo allows its depositors, for a $50 fee, to obtain an advance on recurring income, such as Kenny’s Social Security check. Defendant was arrested and charged with one count of financial abuse of an elder (§ 368, subd. (e)) and one count of fraudulent use of an access card (§§ 484e, 484g). Defendant pleaded no contest to the second count in exchange for a promise of probation and dismissal of the first count.
According to the probation report, during the investigation a Monterey County sheriff’s deputy went through Kenny’s bank statements with her and Kenny pointed out all the transactions she did not make and for which she believed defendant to be responsible. There were several $500 cash advances, $50 processing fees, and $35 overdraft fees. The total on the list was $10,867.27. The probation report specified that the amount was “unverified” and recommended verifying the amount with the victim.
Kenny testified in person at the restitution hearing. The prosecutor explained that “We’re here to talk to you about how much money you think Mr. Potts owes you that he took from you, ” to which the victim replied, “I think about 12, 500.”
The prosecutor then presented the witness with a list of bank charges identified as People’s exhibit No. 1 (exhibit No. 1). Exhibit No. 1 contained charges from January 30, 2009 through October of that same year. The charges on the list totaled $8,910.34. The victim stated that she had reviewed exhibit No. 1 “[w]ith the officer” before coming to court. The following colloquy between the prosecutor and the victim ensued:
“Q: And do you agree with the amount, the charges that are listed on here that you did not consent to him taking this from you?
“A: I did not know.
“Q: You did not know that he took this money from you?
“A: (Witness shaking head from side to side.)
“The Court: And for the record, she is indicating--she is shaking her head as if she indicated that she did not know.
“[The Prosecutor]: Thank you, your Honor. I’d like to move People’s 1 into evidence.
“The Witness: That’s
“The Reporter: I did not hear that.
“[The Prosecutor]: She didn’t hear what you just said. She didn’t hear what you said. She’s typing it, so she needs you to tell her.
“The Court: Ms. Kenny, what did you just say? What was your last statement Ms. Kenny did you make a--what did you say just a moment ago.
“[The Prosecutor]: I believe, your Honor, she said that he took additional monies from her.
“The Witness: Yes.
“The Court: Is that correct, ma’am?
“The Witness: Yes. Oh, I need $20 here, I need 50 bucks here, I need 100 bucks here, I need 500 here, whatever.”
Exhibit No. 1 was admitted into evidence without objection from the defense. The charges contained on the five-page exhibit include numerous point-of-service purchases at stores in Prunedale, Castroville, and Salinas. There is an “Explanation” column noting the victim’s remarks about the charges, such as “Never shopped at this store, ” “Hasn’t eaten there since 2001, ” and “Doesn’t eat at this restaurant.” Eight of the charges were $500 advances, which the prosecution conceded were not “charges” as alleged in the count of which defendant was convicted. Accordingly, the prosecution agreed to reduce the total by $4,000 and asked for $4,910.34 in victim restitution.
On cross-examination Kenny agreed that defendant would drive her to the grocery store and “[o]n a few occasions” she gave him her ATM card to take money out and help her shop. She further testified that she had gone over exhibit No. 1 with the officer just before the hearing and went through the items “one-by-one.” She recalled the final total being “Something like 9, 000 bucks.”
Defendant testified that he encountered Kenny around the end of January 2009 when she was about to be placed in a home. He moved in with her and assumed responsibility for her. When the court asked him what money he had taken from Kenny, defendant replied that he may have taken money out of her account but that she had always known about it. He “never stole it and personally profited from her.”
Defense counsel argued that Kenny’s testimony was not credible, her account of how much she was owed was inconsistent, and that it was clear there was some sort of arrangement. Counsel argued that the court should award zero in victim restitution.
The trial court found defendant was not credible. The trial court concluded that several of the overdraft fees listed on exhibit No. 1 were not applicable because the court could not connect them to any of the unauthorized charges listed. Accordingly, the court reduced the basic amount of victim restitution to $4,443.34 and added interest for a total of $4,887.34.
II. Discussion
Defendant argues that exhibit No. 1 is unreliable, inadmissible hearsay and that his attorney was ineffective in failing to object to it on those grounds. According to defendant, exhibit No. 1 was hearsay in that it was the out of court statement of the sheriff’s deputy who prepared the list of bank charges based upon what the deputy was told by Kenny. Defendant also argues that, “[t]o the extent it was included in the probation report adds another layer of hearsay.” He goes on to point out that neither the sheriff’s deputy that compiled the report nor the probation officer testified at the hearing and, further, that Kenny’s testimony was too conflicting to be reliable. He acknowledges that he waived the argument by failing to raise it below and, therefore, raises the issue by way of the ineffective assistance of counsel rubric. The challenge is unavailing.
A defendant claiming ineffective assistance of counsel must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Frye (1998) 18 Cal.4th 894, 952.) Counsel’s performance was not objectively unreasonable since any objection to the evidence would properly have been overruled.
Section 1202.4, subdivision (f) provides: “[I]n 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... in an amount established by court order, based on the amount of loss claimed by the victim.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” Section 1202.4, subdivision (f)(3) directs that the restitution ordered “shall be of a dollar amount that is sufficient to fully reimburse the victim... for every determined economic loss incurred as the result of the defendant’s criminal conduct....”
The scope of a trial court’s discretion to order restitution is especially broad where, as here, the defendant is released on probation on condition he or she pays restitution. (People v. Giordano (2007) 42 Cal.4th 644, 663, fn. 7.) That is because the defendant has no right to probation; the granting of probation is a privilege. “[I]f the defendant feels that the terms of probation are harsher than the sentence for the substantive offense he is free to refuse probation.” (People v. Miller (1967) 256 Cal.App.2d 348, 356.) By executing a plea agreement under which he conceded the truth of the charge and acknowledged that he would be required to pay restitution to the victim as part of the agreement, defendant waived the objection, voiced at the restitution hearing, that he never used the victim’s debit card without authorization. His only viable objection, therefore, is to the amount of the restitution that was ordered.
“The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).) Nonetheless, “ ‘a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution.’ ” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 (Keichler).) The rules of evidence do not apply in the same way they apply at trial. Hearsay is allowed to assist in the determination of restitution amounts. (People v. Cain (2000) 82 Cal.App.4th 81, 87 (Cain).) Thus, the trial court is entitled to consider the probation report when determining the amount of restitution. (Keichler, supra, at p. 1048.) Furthermore, “it is well settled that ‘statements by the victims of the crimes about the value of the property stolen constitute “prima facie evidence of value for purposes of restitution.” ’ ” (People v. Prosser (2007) 157 Cal.App.4th 682, 690.) The test is whether the defendant has had a full and fair opportunity to test the basis for the order. (Cain, supra, at p. 87.) When the probation report includes a recommendation on the amount of restitution, the defendant must come forward with contrary information to challenge that amount. (People v. Collins (2003) 111 Cal.App.4th 726, 734.)
In the present case, the probation report did not contain exhibit No. 1, as defendant’s opening brief suggests. The probation report merely stated that the total of the unauthorized transactions disclosed to the deputy was $10,867.27 but that the amount was unverified. It is not clear exactly when exhibit No. 1 was generated. What is clear is that Kenny went over it with the officer immediately prior to trial, item by item, and confirmed that that list represented the unauthorized transactions for which she believed defendant was responsible. Thus, even if it was hearsay, since it was offered in connection with a restitution hearing where hearsay is allowed, and since it was verified by the claimant to establish its reliability, any objection to its admissibility would have been unavailing.
Defendant argues that when the prosecutor asked Kenny if she agreed that the amounts on exhibit No. 1 were the charges by defendant that she did not authorize Kenny responded, “I did not know.” The presumed implication is that Kenny was unable to verify the amounts. But the entire colloquy, as set forth above, shows that Kenny’s response was not that she was unsure about the charges but that she did not know defendant had taken the money. That is, Kenny confirmed that she had not authorized the charges reflected.
Defendant further argues that Kenny’s testimony is unreliable because her estimate of what he owed her varied. But, again, the record does not support the argument. That which Kenny believed defendant owed her was different from the amount of restitution the prosecution sought; Kenny made the point that defendant had taken more from her than the amount listed on exhibit No. 1. The fact that the prosecution eliminated the several cash advances does not undermine the reliability of the figures as defendant also suggests. Defendant was not convicted of the elder abuse count. The restitution claim related only to defendant’s conviction for fraudulent use of the debit card and, therefore, the restitution request consisted of only defendant’s unauthorized point of service purchases. Thus, to the extent the total amounts stated in the record differed, there was a legitimate reason for the differences.
In sum, defendant had notice of the amount that Kenny intended to claim and he had a full and fair opportunity to challenge her claim when she appeared personally to testify. Hearsay was no basis, in the context of this restitution hearing, for exclusion of the challenged exhibit. It follows that an objection to exhibit No. 1 would have been overruled so that counsel was not ineffective in failing to object.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.