PEOPLE v. CLAY

No. H043721.

THE PEOPLE, Plaintiff and Respondent, v. ANTANIQUA MARCELLA CLAY, Defendant and Appellant.

Court of Appeals of California, Sixth District.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

BAMATTRE-MANOUKIAN, J.

I. INTRODUCTION

Defendant Antaniqua Marcella Clay pleaded no contest to attempted grand theft of personal property with a value exceeding $950 (Pen. Code, §§ 664, 484, 487, subd. (a)),1 misdemeanor concealing or withholding stolen property (§ 496, subd. (a)), possession of personal identifying information with intent to defraud and a prior conviction (§ 530.5, subd. (c)(2)), and misdemeanor battery (§§ 242, 243, subd. (a)). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that she pay restitution to American Express in the amount of $622.59.

On appeal, defendant contends that the trial court abused its discretion by awarding restitution to American Express because it was not a "direct victim" within the meaning of the restitution statute. (§ 1202.4, subd. (k)(2).) She also argues that the restitution award to American Express results in a "windfall" to another entity. Lastly, defendant contends that the restitution order does not serve the probationary goal of rehabilitation.

For reasons that we will explain, we will affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

On May 19, 2014, an individual used a prepaid American Express card to purchase $622.59 in merchandise at a Coach store in a mall.2 The card, which police later recovered, bears the name of American Express on the front and indicates that it is an American Express "serve" card. The front of the card also has a 15-digit account number, as well as defendant's first and last name. The back of the card indicates that it is a "PREPAID" "Serve Account" card. In making the purchase at the Coach store, the individual who used the card presented identification that matched the name on the card.

That same day, defendant went to a jewelry store at the same mall and attempted to make a purchase of $3,480 with the same American Express card. The jewelry store employee told defendant "that he had to verify all prepaid cards with the banks first before the transaction is completed." The jewelry store employee called American Express and was told that the card was fraudulent. A scuffle ensued as defendant unsuccessfully attempted to get the card back from the jewelry store employee. The employee screamed for help, and defendant dropped all her shopping bags and ran away. The shopping bags contained merchandise that had earlier been purchased at the Coach store with the same card.

The police later determined that the American Express card number belonged to Edward M. Upon seeing his account statement, Edward M. reported the fraudulent Coach transaction to American Express.

A. The Complaint and Defendant's Pleas

In September 2014, defendant was charged by complaint with attempted grand theft of personal property with a value exceeding $950 from the jewelry store (§§ 664, 484, 487, subd. (a); count 1); concealing or withholding stolen property, merchandise from Coach (former § 496, subd. (a); count 2); possession of personal identifying information with intent to defraud and a prior conviction (§ 530.5, subd. (c)(2); count 3); and misdemeanor battery (§§ 242, 243, subd. (a); count 4). Regarding count 3, possession of personal identifying information with intent to defraud, the complaint alleged that defendant had possession of "personal identifying information, namely, credit card number, bank card number, and information identification number of another person, Edward [M.]"

In May 2016, on motion of the prosecutor and pursuant to Proposition 47, count 2 (concealing or withholding stolen property) was amended to allege a misdemeanor. Defendant pleaded no contest to all four counts.

B. The Probation Department's Memorandum

In a waived referral memorandum, the probation officer summarized discussions with the victims. Regarding counts 1 and 4, attempted grand theft from the jewelry store and misdemeanor battery, the victim of the battery, who was also the manager of the jewelry store, reported that the store did not suffer a loss because defendant's "transaction did not go through."

Regarding count 2, concealing or withholding stolen merchandise from Coach, the probation officer spoke with Coach employees and apparently was waiting to hear back from the corporate loss prevention department. The probation officer stated that, "[a]ccording to the police report, several of the items listed on the receipt had been returned to Coach by police on the date of the offense; however, the particular list of items in the defendant's possession is unknown. A general [o]rder for restitution is requested at this time."

Regarding count 3, possession of Edward M.'s personal identifying information with intent to defraud, Edward M. reported to the probation officer that he did not suffer a financial loss because he "caught the fraudulent transaction right away." Edward M. indicated that he did not know "the disposition of the charge with American Express or how the defendant came across his credit card information." The probation officer reported that American Express sought "the full amount in restitution for the fraudulent transaction." In a document attached to the waived referral memorandum and dated June 25, 2014, American Express indicated that the name of its card member was Edward M., that the "[c]ard [s]tatus" was "[c]ounterfeit," that its "[f]raud [l]oss" was $622.59, and that it sought "full restitution." A second document from American Express indicated that the charge at the Coach store on May 19, 2014, had been approved in the amount of $622. The probation officer recommended that American Express be awarded $622.59 in restitution.

C. The Sentencing and Restitution Hearing

At the June 8, 2016 sentencing hearing, defendant objected to paying restitution. The prosecutor contended that defendant used Edward M.'s American Express "credit card" to purchase merchandise from Coach. The prosecutor stated that Edward M. "was not charged" for the purchase, but American Express suffered a loss of more than $622 "as a result of the fraud" by defendant. The trial court found that the prosecution had met its burden of showing that restitution should be awarded based on these facts and the documentation of the loss by American Express.

Defense counsel contended that defendant had "abandoned" all of the Coach property at the jewelry store and that the police recovered the property. Counsel argued that if the police recovered the property, "there should not be any charges . . . incurred as a result of the fraudulent purchase."

The trial court stated that its recollection of the case was that defendant "charged" merchandise at Coach with a "fraudulent credit card." Defendant then went to the jewelry store and attempted to purchase something with the same credit card, but the transaction "didn't go through." However, American Express "was still charged" for the merchandise that had been purchased at Coach.

According to the prosecutor, the police report indicated that "the items that were recovered at the jewelry store were taken to Coach and they accepted them back," but Coach still suffered a loss of $622.59 for "the items that were not recovered."

Defense counsel disputed that loss, arguing that defendant did not retain any merchandise and that "[i]t should have all been recovered."

The trial court responded, "That doesn't necessarily mean that the store is not out money. They don't have to refund a stolen bag. It sounds like they didn't reverse the transaction. There was no obligation to do that and American Express was out the money whether the property was recovered or not."

The trial court subsequently suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that she serve four months in jail. The court also ordered as a condition of probation that defendant "[p]ay restitution as determined by the Court, including but not limited to $622.59 to American Express."

III. DISCUSSION

Defendant contends that the trial court abused its discretion by awarding restitution to American Express. She argues that the fraudulently purchased merchandise was returned to Coach, but that Coach "failed to reverse the transaction, thereby receiving a windfall of items and revenue." Defendant characterizes American Express as a "third-party in the transaction" and argues that it was not entitled to restitution as a "direct victim" under section 1202.4, subdivision (k)(2). She further contends that the restitution order does not serve the probationary goal of rehabilitation.

A. Standard of Review

A trial court's restitution order is reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano).) The abuse of discretion standard "`asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.] Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the . . . victim's economic loss." (Id. at pp. 663-664.) "[A]n abuse of discretion arises if the trial court based its decision . . . on an incorrect legal standard." (People v. Knoller (2007) 41 Cal.4th 139, 156.)

B. General Principles Regarding Victim Restitution

Section 1202.4 declares "the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." (Id., subd. (a)(1).) Thus, "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." (§ 1202.4, subd. (f).) Absent "compelling and extraordinary reasons" (former § 1202.4, subd. (f); Stats. 2012, ch. 868, § 3; Stats. 2012, ch. 873, § 1.5; see People v. Martinez (2005) 36 Cal.4th 384, 389 (Martinez) [applying statutory scheme in existence at time of defendant's crime]), restitution "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct" (§ 1202.4, subd. (f)(3)), including such costs as "the value of stolen or damaged property" (§ 1202.4, subd. (f)(3)(A)).

A prima facie case for restitution may be made based on the victim's statement of the amount of the loss. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172 (Chappelone).) "Once the victim has made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]" (People v. Prosser (2007) 157 Cal.App.4th 682, 691 (Prosser).)

C. Direct Victim

A "victim" for purposes of restitution under section 1202.4 includes a "corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime." (Id., subd. (k)(2), italics added.) In other words, "section 1202.4, subdivision (k) permits restitution to a business or governmental entity only when it is a direct victim of crime." (Martinez, supra, 36 Cal.4th at p. 393.)

Thus, to be entitled to restitution in this case, American Express "must have (1) suffered an economic loss, and (2) be considered a `direct victim' under the statute." (People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1082 (Saint-Amans).) Defendant acknowledges that "American Express incurred a loss of $622.59 as a result of the transaction at Coach," but contends that American Express was a "third-party in the transaction" and not a direct victim.

"The case law has ascribed a precise meaning to the phrase `direct victim,' as that phrase has appeared in several restitution statutes. Thus, it is established that a statute `permitting restitution to entities that are "direct" victims of crime [limits] restitution to "entities against which the [defendant's] crimes had been committed"—that is, entities that are the "immediate objects of the [defendant's] offenses." [Citation.]' [Citations.]" (People v. Runyan (2012) 54 Cal.4th 849, 856 (Runyan).)

Examples where an entity was determined not to be a direct victim include Martinez, supra, 36 Cal.4th 384. In that case, the California Supreme Court held that the Department of Toxic Substance Control was not the "immediate object" of the defendant's offense, attempted manufacture of methamphetamine, and thus was not entitled to restitution for its mandatory costs of cleaning up substances at the defendant's illegal drug laboratory. (Martinez, supra, at p. 393; see also id. at pp. 386-387, 394.)

Likewise, "[i]nsurance companies that merely indemnify a direct victim of a crime . . . are not entitled to restitution. [Citations.]" (Saint-Amans, supra, 131 Cal.App.4th at p. 1085.) For example, the California Supreme Court "concluded that automobile insurers were not entities against which the defendant's vehicle theft and `chop shop' crimes were committed, and thus were not `direct' victims entitled to restitution, under similar language in former section 1203.04, for amounts the insurers paid to reimburse their policyholders for their losses. [Citation.]" (Runyan, supra, 54 Cal.4th at pp. 856-857, discussing People v. Birkett (1999) 21 Cal.4th 226.) On the other hand, "[i]nsurance companies that are victims of insurance fraud are . . . entitled to restitution. [Citations.]" (Saint-Amans, supra, 131 Cal.App.4th at p. 1085.)

In the banking context, an appellate court held that a bank was the direct victim of the defendant's commercial burglary, where the defendant through a series of account transactions was able to transfer money from another person's account and withdraw that money from the bank. (Saint-Amans, supra, 131 Cal.App.4th at pp. 1079-1080.) The court reasoned that "[t]he object of [the defendant's] crime was to enter the bank and make fraudulent withdrawals of funds managed by the bank. Thus, the object of [defendant's] crime was to commit fraud against the bank." (Id. at p. 1087.)

Similarly, another appellate court held that a bank was the direct victim, where the defendant had forged checks drawn on the bank. (People v. Bartell (2009) 170 Cal.App.4th 1258, 1260 (Bartell).) The court observed that the bank could not debit the victim's account once it learned the checks were forged and instead the bank had to absorb the loss. (Id. at p. 1262.) The bank was thus the "`object' of the forgeries [citation] because it was the bank's money defendant was taking. The bank was not an indirect victim, one who merely assists in remediating the effects of a crime. [Citations.]" (Ibid.)

In this case, defendant pleaded no contest to, among other offenses, violating section 530.5, subdivision (c)(2). The elements of that offense include (1) acquiring or retaining possession of the personal identifying information of another person, and (2) the intent to defraud. (Ibid.) As alleged in the complaint and admitted by defendant's no contest plea, the personal identifying information that defendant possessed included the "credit card number, bank card number, and information identification number" of another person. (See §§ 530.5, subd. (c)(2), 530.55, subd. (b).)

In particular, the record reflects that defendant possessed a prepaid card that bore (1) the name of American Express, (2) an American Express card number that was associated with another person (Edward M.), and (3) defendant's own name. Possessed with Edward M.'s American Express card number and with the intent to defraud, defendant obtained Coach merchandise, causing American Express to suffer a loss of $622.59. Defendant's possession of Edward M.'s American Express card number inextricably linked American Express and Edward M. as victims of defendant's crime. Edward M. was a victim only because he was associated with the particular American Express card number that defendant possessed. Moreover, the Coach transaction could not have occurred without the involvement of American Express, including by originally providing a valid American Express card number to Edward M., and as defendant admits on appeal, by "immediately transferring the $622.59 . . . to Coach when the point-of-sale transaction was completed." In the absence of American Express, defendant could not have committed her crimes against Edward M. or Coach.

In view of defendant's possession, with the intent to defraud, of a prepaid card bearing (1) the name of American Express, (2) an American Express card number that was associated with another person, and (3) her own name, and in view of the fact that she caused American Express to suffer a loss of $622.59 by way of that card, we determine that American Express was an "`immediate object[]'" of defendant's offense of possession of personal identifying information with intent to defraud (§ 530.5, subd. (c)(2)). (Runyan, supra, 54 Cal.4th at p. 856.) Accordingly, American Express was a "direct victim" within the meaning of section 1202.4, subdivision (k)(2) and was entitled to restitution for its economic loss as a result of defendant's conduct. (Saint-Amans, supra, 131 Cal.App.4th at p. 1082.)

We are not persuaded by defendant's suggestion that the victim of a section 530.5 offense for purposes of restitution may only be an individual person. Although section 530.5 has been referred to as the crime of "identity theft" (see, e.g., § 368, subds. (d) & (e)), as the facts in this case reflect, more than just the individual whose personal identifying information has been acquired may suffer an economic loss as a result of the defendant's possession of the information with the intent to defraud.

Defendant relies on Saint-Amans, in which the appellate court concluded that a bank was the direct victim of the defendant's commercial burglary. (Saint-Amans, supra, 131 Cal.App.4th at p. 1084.) The appellate court in Saint-Amans stated that "[c]ommercial burglary indicates that [the defendant] committed the offense against a business entity rather than an individual," whereas a conviction for "`unauthorized use of personal identifying information or related crimes'" "would indicate that the victim was [the individual], rather than the bank." (Saint-Amans, supra, 131 Cal.App.4th at p. 1087.) Saint-Amans did not consider all the circumstances under which a violation of section 530.5 might be committed and, for the reasons that we have explained, we determine that the facts in this case support a finding that American Express was a direct victim of defendant's offense.

We are also not persuaded by defendant's argument that Edward M.'s card number was associated with a credit card, that the "contractual obligations" of American Express "to the direct victims, Coach and [Edward M.], are analogous to an insurer," and that American Express is therefore not entitled to restitution.

First, defendant fails to provide adequate factual or legal support for her contentions that (1) an American Express prepaid "serve" account is more similar to a credit card account than, for example, a checking account, and (2) American Express "acted as an indemnitor" and had a "contractual obligation[]" to Coach that is "analogous to an insurer." The terms of Edward M.'s American Express account and any contract between American Express and Coach are not in the record. We are not persuaded by defendant's argument that "American Express indemnified Coach from the fraudulent transaction" based on the fact that American Express "immediately transferr[ed] the $622.59 from [Edward M.'s] account to Coach when the point-of-sale transaction was completed." Defendant fails to persuasively articulate why the transfer gives rise to an inference of indemnification, as opposed to simply reflecting, for example, the ordinary process by which funds are transferred when a transaction involves a prepaid American Express card.

Second, based on the record, we reject defendant's characterization of American Express as simply an insurer. As we have explained, American Express and Edward M. were inextricably linked as direct victims of defendant's offense of possession of personal identifying information with intent to defraud (§§ 530.5, subd. (c)(2), 530.55, subd. (b)). Edward M. was a victim only because he was associated with the American Express card number that defendant possessed with the intent to defraud. American Express played an indispensable role in providing that card number to Edward M. and was an integral part of the Coach transaction. In the absence of American Express, defendant could not have committed her crimes against Edward M. or Coach. Thus, American Express "was not an indirect victim, one who merely assists in remediating the effects of a crime" (Bartell, supra, 170 Cal.App.4th at p. 1262), but rather was a direct victim of defendant's possession of Edward M.'s American Express card number with the intent to defraud.

D. "Windfall" to Coach

Defendant further contends that the restitution order to American Express was an abuse of discretion because it resulted in a "windfall" to Coach. According to defendant, the stolen goods were returned "undamaged" to Coach. She argues that Coach failed, however, to "reverse the transaction" with American Express, which resulted in the loss to American Express. Defendant contends that a "compelling and extraordinary reason" therefore existed for not imposing restitution.

As we stated, absent "compelling and extraordinary reasons" (former § 1202.4, subd. (f); Stats. 2012, ch. 868, § 3; Stats. 2012, ch. 873, § 1.5; see Martinez, supra, 36 Cal.4th at p. 389), restitution "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct" (§ 1202.4, subd. (f)(3)). However, "[a] restitution order is intended to compensate the victim for its actual loss and is not intended to provide the victim with a windfall. [Citations.]" (Chappelone, supra, 183 Cal.App.4th at p. 1172.) Consequently, "a victim is not entitled to restitution for the value of property that was returned to him or her, except to the extent there is some loss of value to the property. [Citation.]" (Id. at p. 1180.)

Defendant fails to establish that it was an abuse of discretion for the trial court to award American Express restitution based on Coach's failure to "reverse the transaction."

First, the trial court did not give a "windfall" to Coach. The court made no award with respect to Coach. To the extent Coach received a "windfall," defendant does not provide any legal authority suggesting that the court had the power to order Coach either to give the money back to American Express or to refuse the return of the stolen merchandise. The only victim that affirmatively sought restitution was American Express and, as we have explained, the court properly determined that it suffered an economic loss as a result of defendant's offense.

Second, defendant fails to establish that Coach actually received a windfall. It is not clear from the record whether all of the stolen merchandise was returned to Coach without any loss of value. A police "Property Report" reflects that seven Coach items were collected as evidence and retained by the police through at least mid to late June 2014.3 The Coach receipt from when the items were earlier taken from the store on May 19, 2014, indicates that all the items had been sold at a discount at that earlier time. It is not apparent from the record whether, to the extent all of the items were recovered by Coach, it would have been able to sell those same items for the same amount even a month later, for the same total of $622.59. Thus, even if all the stolen items had been returned to Coach, as the trial court stated, "[t]hat doesn't necessarily mean that the store is not out money."

We reject defendant's suggestion that the trial court erred by failing to determine the value of the returned goods. A prima facie showing of the amount of the loss suffered by American Express was made based on the documents attached to the probation officer's waived referral memorandum. Based on this showing, the burden shifted to defendant "to demonstrate that the amount of the loss is other than that claimed by the victim." (Prosser, supra, 157 Cal.App.4th at p. 691; accord, Chappelone, supra, 183 Cal.App.4th at p. 1172.) Defendant presented no evidence to the trial court concerning the value of any merchandise recovered by Coach.

Third, defendant fails to persuasively articulate factually or legally why it was an abuse of discretion to award restitution to American Express, notwithstanding Coach's failure to "reverse the transaction." As we have stated, nothing in the record indicates the terms of any contract between American Express and Coach, including that Coach was obligated to reverse the transaction. Nor does the record reflect whether American Express has a viable legal claim against Coach for return of the funds. Defendant also fails to provide legal authority to support the proposition that a crime victim such as American Express must pursue legal remedies against another party, instead of seeking restitution under section 1202.4, for economic loss caused by the criminal conduct of a defendant.

In sum, defendant fails to establish that the trial court abused its discretion in awarding restitution to American Express in view of a purported "windfall" to Coach.

E. Goals of Probation

Defendant lastly contends that the restitution order was an abuse of discretion because it "fails to serve the primary goal of probation: rehabilitation."

Section 1203.1 "gives trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety. [Citation.]" (People v. Anderson (2010) 50 Cal.4th 19, 26 (Anderson); see § 1203.1, subd. (j).) "Restitution as a condition of probation has always been expressly authorized by section 1203.1." (Anderson, supra, at p. 27.) The statute requires that a court award restitution "in proper cases." (§ 1203.1, subd. (a)(3).) "While restitution under section 1203.1 may serve to compensate the victim of a crime, it also addresses the broader probationary goal of rehabilitating the defendant. `"Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused."' [Citation.] Restitution `impresses upon the offender the gravity of the harm he has inflicted upon another, and provides an opportunity to make amends.' [Citation.]" (Anderson, supra, at p. 27.)

The California Supreme Court has stated that "under section 1203.1, `California courts have long interpreted the trial courts' 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.' [Citation.] As [the California Supreme Court] explained: `Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation]. 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. [Citation.]' [Citation.]" (Anderson, supra, 50 Cal.4th at p. 27.) The California Supreme Court observed that it had previously "upheld a restitution order for property damage after concluding that `in the context of the hit-and-run statute, the restitution condition may relate to conduct that is not in itself necessarily criminal, i.e., the probationer's driving at the time of the accident.' [Citation.]" (Ibid.)

Significantly, the California Supreme Court has held that a trial court's scope of discretion to order restitution as a condition of probation under section 1203.1 is broader than the discretion to award victim restitution under section 1202.4. In this regard, the court has stated: "Trial courts continue to retain authority to impose restitution as a condition of probation in circumstances not otherwise dictated by section 1202.4. In both sections 1203.1 and 1202.4, restitution serves the purposes of both criminal rehabilitation and victim compensation. But the statutory schemes treat those goals differently. When section 1202.4 imposes its mandatory requirements in favor of a victim's right to restitution, the statute is explicit and narrow. When section 1203.1 provides the court with discretion to achieve a defendant's reformation, its ambit is necessarily broader, allowing a sentencing court the flexibility to encourage a defendant's reformation as the circumstances of his or her case require." (Anderson, supra, 50 Cal.4th at p. 29; accord, Giordano, supra, 42 Cal.4th at p. 663, fn. 7.)

In this case, requiring defendant to pay restitution to American Express serves the probationary goal of rehabilitation. Defendant's conduct included possession of a fraudulent American Express card that had her name on it, but the number of another person's American Express card. The victims who potentially may suffer economic loss in a case involving possession of a fraudulent card, such as the one defendant had had, are readily apparent: the issuer of the valid card (such as American Express), the true card holder (such as Edward M.), and the merchant (such as Coach). In this case, the fraudulent card enabled defendant to obtain hundreds of dollars worth of merchandise from Coach, and she attempted to acquire thousands of dollars of worth of merchandise from the jewelry store. Defendant even battered the jewelry store employee in her attempt to retrieve the card after the employee discovered it was fraudulent. Under the circumstances, the trial court's award of restitution to American Express for the loss directly caused by defendant's possession of the card serves the goal of rehabilitation, in view of (a) defendant's possession of the fraudulent card, (b) her use and/or attempted use of the card to obtain expensive merchandise, and (c) her willingness to batter an innocent employee in order to retain the card. Moreover, defendant only abandoned the Coach merchandise at the jewelry store upon battering the jewelry store employee and the employee yelling for help. Under the circumstances, "`"[r]estitution is an effective rehabilitative penalty because it forces . . . defendant to confront, in concrete terms, the harm [her] actions have caused"'" and "`impresses upon [her] the gravity of the harm [she] has inflicted upon another, and provides an opportunity to make amends.'" (Anderson, supra, 50 Cal.4th at p. 27.)

We are not persuaded by defendant's reliance on People v. Williams (1966) 247 Cal.App.2d 394 (Williams), which considered the limits of a trial court's discretion in imposing the conditions of probation. In Williams, the defendant was convicted of assaulting a store owner after the owner learned that the defendant's credit card was "blacklisted" and refused to return the card to the defendant. (Id. at p. 396.) The credit card company had refused to allow the defendant's continued use of the card because he had failed to pay off a large balance on the card. (Id. at pp. 396-397.) Upon his conviction for assault, the court placed the defendant on probation with various conditions, including that he pay the balance on the card. (Id. at p. 395.)

The appellate court determined that "`flexibility in administration' "was necessary to accomplish the purpose of section 1203.1 when setting probation conditions, but the appellate court also cautioned: "This . . . is not to say that every claim by one victimized directly or indirectly by defendant's conduct should be granted reparation or restitution, or that the criminal courts should be reduced to collection agencies." (Williams, supra, 247 Cal.App.2d at p. 409.) The appellate court concluded that the probation condition requiring payment of the debt was unauthorized. (Id. at pp. 395-396.) The court reasoned that the credit card debt arose before the defendant committed the assault. Further, there was "nothing to show that the defendant either secured or retained the credit card through any fraudulent practices. . . . No charge is made that the defendant used any alias or other subterfuge in an attempt to fraudulently secure credit. From all that appears he merely took advantage of the credit privileges extended by the credit card organization, and incurred a liability greater than he could liquidate. Although, as he admitted, this conduct was unethical, its relationship to the offense of which he was convicted is collateral only." (Id. at p. 409.)

In contrast, in the present case, defendant possessed an American Express card with her name on it but another person's card number, with the intent to defraud. Her possession of the card directly resulted in the loss suffered by American Express. Requiring payment of restitution to American Express as a condition of probation fulfills the goal of rehabilitation and was not an abuse of discretion by the court.

IV. DISPOSITION

The judgment (order granting probation) is affirmed.

ELIA, ACTING P.J. and MIHARA, J., concurs.

FootNotes


1. All further statutory references are to the Penal Code unless otherwise indicated.
2. Defendant was convicted by plea and the waived referral memorandum prepared by the probation department does not contain a detailed factual recitation of her offenses. The facts underlying defendant's offenses are taken from reports by the Milpitas Police Department. This court granted defendant's request to augment the record to include the police reports, which had been lodged in the superior court. During the restitution hearing, the prosecutor referred to the police reports without any objection from defendant, and both defendant and the Attorney General rely on the police reports in this court.
3. Although the probation officer in the waived referral memorandum stated that, "[a]ccording to the police report, several of the items listed on the receipt had been returned to Coach by police on the date of the offense" (italics added), it does not appear from the police reports in the record that all the items were returned to Coach on the date of the offense.

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