Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 07WF0360, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Patrick J. Hennessey, Jr., for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Brenda Lynn Sexton contends the record fails to support the trial court’s $130,000 restitution order. She argues the matter should be remanded for a further hearing as to the actual loss suffered by the victim. We conclude her contention lacks merit and affirm the restitution order.
FACTS
Sexton’s sole claim on appeal is with respect to the trial court’s restitution order. Accordingly, we will focus only on those facts relevant to this issue.
Sexton dated victim Maria Camacho’s son. During a five and one-half month period, Sexton broke into Camacho’s safe and stole cash and jewelry. Camacho initially claimed her loss was $116,000, but she stated there were several pieces of missing jewelry that she was unable to value at that time. Later, she claimed the total loss was $130,000.
Camacho related she kept cash in the safe in $100 bills bundled in $15,000 amounts. A number of receipts for cash purchases by Sexton were given to police investigators. Camacho’s son told police officers that Sexton had purchased two vehicles, rented and fully furnished an apartment, and purchased new clothes for both of them. Sexton told Camacho’s son she was being paid under the table as a caretaker. Sexton does not dispute she stole money but asserts it was a lesser amount than claimed by the victim.
In February 2007, Sexton was charged with one count of grand theft and one count of possessing methamphetamine. Sexton pled guilty to both counts. The court sentenced her to three years of formal probation on the condition she serve 180 days in custody. She was also ordered to pay restitution in an undetermined amount to the victim on the grand theft count. In November 2008, the prosecution filed a motion requesting the court order full payment of restitution in the amount of $130,000 to Camacho.
Sexton did not do well on probation, and she was brought back to the court numerous times for alleged violations before a restitution hearing was held. While the third petition alleging a violation of probation was pending, the court conducted a restitution hearing. At the hearing, the prosecution submitted based on a report and documents prepared by the probation department. The probation report contained a statement from the victim alleging she had suffered a loss of $130,000. It also contained a statement from Sexton claiming she had only taken a total of $25,000 from the victim. The probation officer resolved the $105,000 discrepancy in favor of the victim and recommended restitution be ordered in the amount of $130,000. The probation officer did not include in the report any explanation as to how the recommended amount was determined.
Sexton argued there was no foundation for the documentation that was provided to the court, but the court overruled her objection. She then requested to call the victim to the stand. The prosecution objected indicating defendants have no right to confront the victim in a restitution hearing. The court sustained this objection, rejecting Sexton’s argument the ruling would violate her right to due process guaranteed by both the United States and California Constitutions. Sexton called no witnesses at the hearing. The court set restitution in the amount of $130,000.
DISCUSSION
Sexton agrees California crime victims have a constitutional right to restitution for losses resulting from criminal acts committed against them, but she argues the amount of the restitution ordered by the court was not supported by the evidence. Sexton does not assert she had a right to cross-examine the victim or the probation officer at the restitution hearing, and admits case law has held “a defendant’s due process rights are protected when the probation report gives notice of the amount of restitution claimed... and the defendant has an opportunity to challenge the figures in the probation report.” (People v. Cain (2000) 82 Cal.App.4th 81, 86-88, internal citations and quotation marks omitted.) She argues though there was insufficient evidence at the hearing to support the court’s order because the court, without any rigorous inquiry, accepted the victim’s claim.
Sexton concedes she did not put on any evidence, but the probation report contained statements by both the victim and Sexton regarding the amount of the loss. This report was the only evidence before the court. Admittedly, there was scant evidence in the record to support the trial court’s order, but we conclude the order is adequately supported by the evidence. Sexton was given a fair opportunity to challenge the victim’s claim, and that is all the law requires. (People v. Prosser (2007) 157 Cal.App.4th 682, 692.)
A review of the record suggests the court acted in a rather caviler fashion. A reasonable person reading the record could easily conclude the court did not place great importance on the task before it. We remind the court that it does not act with unfettered discretion in determining a restitution amount. Failure to prudently exercise discretion could result in reversal of the judgment. (People v. Ortiz (1997) 53 Cal.App.4th 791, 799-800.)
Sexton suggests the pendency of the sentencing hearing on her probation violation placed her in an awkward situation. If she chose to testify at the restitution hearing and the court found her less than credible, the court might have elected to impose a greater sentence. We agree Sexton was faced with a difficult choice, but we are not persuaded these circumstances excused her from the burden of proving the victim’s valuation of the loss was untrue. Defendants in criminal trials are often forced to make difficult decisions in deciding whether to exercise the right to testify. For example, it is obvious the danger of impeachment by evidence of a prior felony conviction places a heavy burden on a previously convicted defendant’s exercise of the right to testify. It is nevertheless settled that such burden on the right to testify in one’s own behalf does not deny the defendant due process or infringe on the right to call witnesses to testify on the defendant’s behalf. (People v. Beagle (1972) 6 Cal.3d 441, 453-454, superseded by statute on other grounds.) The burden Sexton argues here is clearly no more excessive than that which was approved of in the Beagle case.
DISPOSITION
The restitution order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.