Filed 8/1/16 P. v. Lockett CA2/1
Received for posting 8/10/16
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                           B265533

         Plaintiff and Respondent,                                    (Los Angeles County
                                                                      Super. Ct. No. GA087587)
         v.

NATHANIEL CHRISTOPHER LOCKETT,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Dorothy
L. Shubin, Judge. Reversed.
         A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Robert
C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
                                             ____________________
                                                                                         1
       Nathaniel Lockett challenges the amount of the restitution award to the victim.
We agree that the trial court abused its discretion in awarding restitution for the Discover
Cards charges not transactionably attributable to Lockett or his codefendant Angela
Jamila Chappill. Accordingly, we reverse the restitution award and remand the matter for
further proceedings.

                                      BACKGROUND
                                                                    2
       On September 7, 2012, Lockett used a fake Discover Card in his name to buy
merchandise at a GAP retail store in the Glendale Galleria. On the same day and at the
same mall, Chappill attempted to use a different, but fake, Discover Card to buy
                                       3
merchandise at GAP and Nordstrom.
       The April 4, 2013 information, charged the first two counts of four counts against
Lockett, only: count 1, identity theft by obtaining “personal identifying information of a
[Discover Card cardholder] and using that information for an unlawful purpose and to
obtain, and attempt to obtain, credit, goods, [and] services” (Pen. Code, § 530.5, subd.
   4
(a)) and count 2, theft of “access card account information with respect to an access card
validly issued to another person, without the cardholder’s and issuer’s consent, with
intent to use it fraudulently.” (Pen. Code, § 484e, subd. (d).) The information further



       1
           Lockett does not challenge the conviction.
       2
        Lockett used Discover Card No. 6011005563175564; the true account holder
was Elizabeth H. Crouch.
       3
         As there was no preliminary hearing, we take the facts from the transcripts of the
plea hearing and the restitution hearing, as well as from the briefs and exhibits filed by
the parties in connection with the restitution hearing. The defense exhibits include an
Excel spreadsheet, an email from Discover Financial Services employee Maria Micioni to
Robert Zaun of the Glendale Police Department, and Zaun’s police report.
       4
           Unless otherwise noted, further statutory references are to the Penal Code.

                                               2
                                                  5
alleged that Lockett had three prior convictions and did not remain free of prison custody
for, and did commit an offense resulting in a felony conviction during, a period of five
years subsequent to the conclusion of each term.
       The same April 4, 2013 information, charged two additional counts, counts 3 and
4, against Chappill, only; both counts allege violation of section 484e: theft of access
card account information with respect to an access card validly issued to another person
without the cardholder’s and issuer’s consent, with intent to use it fraudulently. On July
12, 2013, the prosecution dismissed the case against Chappill after the trial court granted
her motion to suppress evidence pursuant to section 1538.5.
       At the February 11, 2015 plea hearing, the deputy district attorney advised Lockett
that he would be required to make restitution on all four counts:
       “MR. STEVE IPSON [Deputy District Attorney]: “My understanding is you will
be pleading guilty or no contest to count 1. You’ll be sentenced to 16 months in state
prison. . . . And you will also be making restitution for any losses incurred as a result of
any activity, anything that occurred in—as it’s alleged in counts 1, 2, 3, and 4. So even
though those counts will be dismissed, the court will look at them as if you were
convicted for purposes of calculating restitution.
       “Do you understand?
       “THE DEFENDANT: Yes, Sir.”
       Later, the deputy district attorney told Lockett, “There will be additional fines and
fees that the court may assess against you in addition to any restitution. You may be
ordered to pay a restitution fine and any other fines and fees the court may assess. Do
you understand?” Lockett replied, “Yes, Sir.”
       The trial court engaged in a colloquy with Lockett, telling Lockett: “You need to
pay restitution to the victims in this case even on the counts that are being dismissed. Do


       5
         The charged priors are a 1996 conviction of violation of Health and Safety Code
section 11350, a 2003 conviction of violation of Health and Safety Code section 11352,
and a 2008 conviction of violation of Health and Safety Code section 11351.

                                              3
you understand that? Restitution means if, because of your conduct, someone lost money
or property, you need to pay them for that.” Lockett responded, “I understand that,
Ma’am.” The trial court reiterated, “Do you understand your obligation to do that?”
Lockett replied, “Yes, Ma’am.”
       On February 11, 2015, Lockett entered a plea of nolo contendere to count 1,
identity theft. (§ 530.5, subd. (a).) The trial court sentenced Lockett to the low term of
16 months and dismissed count 2. The trial court set a restitution hearing for May 27,
2015. Lockett waived his appearance at the restitution hearing.
       The prosecution moved to set full restitution, but did not set forth a total amount of
restitution and did not attach any documentation or declarations to the motion. The
pertinent sentence in the People’s motion reads: “The total sum owed to the named
victim, as dictated by the terms of PC § 1202.4 and W&I § 730.6 and applied to the facts
of this case, is $   .”
       Deputy District Attorney Marc Debbaudt stated in the motion that he presented an
Excel spreadsheet printout obtained from Discover Card Corporate Security and
proceeded to summarize the spreadsheet, but did not attach it as an exhibit. The deputy
district attorney stated that, on September 7, 2012, Lockett used a fake Discover Card to
obtain merchandise at a GAP store in the Glendale Galleria. The next person to approach
the GAP cashier was Chappill, who attempted to use a different, but fake, Discover Card
to buy merchandise she had grabbed from a display without checking sizes or price.
When the card did not go through, the cashier called Discover Card and learned that the
account holder’s name did not match the name on the card that Chappill had presented.
Chappill quickly exited the GAP store and subsequently tried to use a fake Discover Card
to make a purchase at Nordstrom in the Glendale Galleria. Chappill did not complete a
purchase at either store, and there is nothing in the record to show that she completed any
purchases at the Glendale Galleria or at any other location in Los Angeles County on
September 7.
       When Lockett was apprehended, Downtown Policing Unit officers found him
carrying two bags filled with GAP merchandise and an obviously-faked Discover Card,

                                             4
imprinted with his name and crooked numbers and a taped-on security code. When
Chappill was apprehended, officers found two fake Discover Cards, imprinted with the
                                                              6
name, “Desaray Starks,” concealed in her underclothing. She asked permission to use
the bathroom and eventually officers found that she had clogged the toilet by attempting
to flush five additional fake Discover Cards, all showing the name of “Jermaine Owens.”
In Chappill’s handbag, officers found a GAP receipt, showing a total of $420.38 and with
                                7
the credit card number matching the number of the Discovery Card that Lockett had
used at the GAP store.
            Within the restitution motion, the deputy district attorney provided tables to show
the account numbers and true account holders for each of the credit cards found in
                            8
possession of Lockett and Chappill, including the cards Chappill had attempted to flush
        9
away.
            In his response to the People’s motion, Lockett agreed that he should pay
restitution to Discover Card in the amount of $420.38, which is the sum of $386.56 in
merchandise and $33.82 in tax.




            6
       The true account holder of the “Desaray Starks” credit card No.
6011008214610872 was Ronald D. Hanson, and the other account, No.
6011398581156488, was an “invalid number.”
            7
                Discover Card No. 6011005563175564; the true account holder was Elizabeth H.
Crouch.
            8
        The true account holders for the five accounts of fake Discover Cards recovered
from Lockett and imprinted with the name, “Nathaniel Lockett,” are Elizabeth H. Crouch,
Kyle D. Brooks, Jimmy D. Nguyen, Holly M. Schneiderman, and Adrian G.
Montemayor.
            9
         The true account holders of the fake Discover Cards that Chappill had tried to
flush are Laura W. Williamson, Gina M. Murray, David Bruce Murray, Richard I. Nuss,
and Mary L. Goza.

                                                  5
       Lockett challenged the imposition of any additional restitution for charges made to
the cards held by Chappill and made on other dates and, for some charges, in other states.
Lockett attached the September 24, 2012 Glendale Police Department report, prepared by
Robert Zaun, showing that Maria Micioni of Discovery Financial Services, whose office
is in Burbank, provided information to Zaun regarding the fraudulent use of Discover
Cards. Micioni states in her September 24, 2012 email to Zaun, that the “suspects never
got the chance to use the cards with the exception of one.”
       Zaun states in the Glendale Police Report that he signed that Micioni informed
him that “the only additional reported fraud” was on the card of Richard L. Nuss, with a
transaction date of September 7, 2012, for an Alaska Airlines purchase that originated in
Arizona.
       In his report, Zaun also states that Glendale officers found five fake Discover
Cards on Lockett’s person, each imprinted with Lockett’s name. Officers found two
counterfeit cards on Chappill’s person, each imprinted with the name, “Desaray Starks.”
Officers found five additional Discover Cards, in the name of Jermaine Owens, that
Chappill had attempted to flush down a toilet at the Glendale Galleria.
       In his response to the People’s motion for restitution, Lockett attached a copy of
Discover Card’s Excel spreadsheet, entitled “Discover Card Lockett and Chappill
Losses,” with charge dates ranging from June 2012 through September 2012,
corresponding to the account numbers of the fake credit cards found with Lockett and
Chappill. In addition to the undisputed $420.38 GAP purchase, the spreadsheet shows
                                                                 10
two September 7 Alaska Airlines purchases in Arizona, of $661 and $15, respectively,
on the account of Richard Nuss; and, on the account of Ronald Hanson, a September 7
               11
COA Airline purchase of $485.55 in New York and a September 7 charge of $111.76


       10
         The charge is shown as $661.00 in the column, “Fraud Auth. Amount,” but as
$660.60 in the column, “Fraud Charge Amount.”
       11
            “COA” refers to CheapOair.

                                             6
                      12
for TSP in Nevada.         The Excel spreadsheet also shows about 10 Walmart purchases
primarily in East Puyallup, Washington, but also in St. Clair, Pennsylvania, Bentonville,
Arkansas, and Laredo, Texas, with some of those transactions having occurred on
September 7. The Excel spreadsheet also contains a Macy’s purchase of $856 and a
purchase of $37.92 at Ottos Liquors, both in Bloomington, Minnesota, and a September
1, $29.90 purchase at Manny’s Café Midway in Chicago, Illinois. The spreadsheet shows
a $100 charge at Bay Street 18 in Emeryville, California, on September 2, and a $50
charge on September 6 at Selix Hayward.
                                    13
       At the restitution hearing conducted on June 24, 2015, Lockett’s counsel insisted
that the Excel spreadsheet was insufficient to satisfy the People’s burden of proof as to
the amount of restitution and demanded that she be permitted to call and examine a
Discover Card representative. She stated: “I do think the client is entitled to a hearing,
and one of my concerns was in speaking with the loss prevention officer in this particular
case—and I did speak to her. [¶] I was hoping to have the opportunity to bring her in.
She was unable to tell me how these charges necessarily got on that card. . . . [¶] . . . [¶]
       “[O]n its face, what the document tells us is that there were charges made
attributed to certain card numbers on the 7th. They’re not even in the area. On its face
they’re in Arizona. They’re in Nevada. There’s no evidence to say that these were
online orders, phone orders, how these took place.
       “So it’s clear that our individuals were in Glendale. It’s also potential that these
cards are all over the country as related to other individuals being used by multiple crime
syndicates, if you will, or other individuals using these cards. . . . Taking the court’s
theory out that you’re going to hold the two individuals who were arrested on September
7th liable for the charges on that day, I think it further has to be held that those charges
were in the areas in which they were purported to be in that day.


       12
            The TSP charge is characterized as a room reservation at a hotel.
       13
            Again, Lockett waived his appearance at the restitution hearing.

                                               7
        “There’s no evidence they were in Arizona. There’s no evidence they were in
Nevada. There’s no evidence that they were, of course, in Tennessee and Minnesota.
And so there’s no evidence that they were before the court, at least that they were in
Emeryville. So there’s no evidence that these individuals made these charges. . . . [¶] . . .
[¶]
        “So I would like to be able to cross-examine the proponent of the evidence of this
spreadsheet, where did this information come from and how did they arrive at this? I
don’t—I don’t know. It just says, Discover Card Lockett and the Chappill Losses. I
don’t know how that was attributed. It’s not like there’s a victim who said that’s my
card. I never used it. We just don’t have that. The times aren’t in Pacific Time. They’re
in Eastern Standard Time. So there’s an issue with the times.
        “I don’t have even a phone call or video saying these were online purchases from
someone in Glendale, California, or a phone number. There’s nothing to tie them into
this. And according to the woman from Discover that I talked to, these cards and—the
cards themselves can—these are fraudulent cards, apparently, with fraudulent numbers on
them.
        “Those cards could have been on 500 cards across the nation, and no one knows
how many cards were out there utilizing that number and when they were utilizing and
who was utilizing it other than the charges that came up.”
        The prosecutor argued: “This Excel printout . . . says Discover Card Corporate
Security. That’s who produced this. It lists the card numbers. Basically, the card
numbers that were obtained from these—both these defendants, and then it lists the dates
that they were used and the names under which they were used and the amounts of loss
for each of these card numbers.
                                                              14
        “The cards were all identical, blue Discover cards.        They were all sort of
awkwardly forged in a way that made them sort of a signature.


        14
        In contrast to the prosecutor’s argument at the restitution hearing that the cards
were blue, the written motion for restitution states that the cards were silver.

                                              8
       “We know that Lockett didn’t do the credit card use that Chappill did because
Chappill went into a different store and used a fraudulent credit card and made a
purchase. Yet I think the law clearly says that Lockett is equally responsible for that
because there was a scheme.
       “All of these transactions take place over a weekend, from August the 28th to
                           15
September the 7th. . . .        So we’re talking a week period where they possessed these card
account numbers. So it’s not an unreasonable inference.
       “In fact, it’s quite a logical extrapolation that they somehow obtained these card
numbers and these credit card numbers either they manufactured them themselves or they
obtained them from somebody else. And, apparently, they gave some to Chappill, and
they gave some to Lockett, and maybe they gave it to somebody else. Doesn’t matter.
       “The connection to these account numbers has been established, and I believe
under joint and several liability and under the constitution that mandates the victim be
restituted in whole for the losses, that they’re equally attributable to the scheme no matter
where it took place or who was doing it.
       “[W]hether it was somebody in Wisconsin where they mailed these cards off, they
were all part of big credit card scheme. And they’re no less liable because their role was
limited to going into one store and purchasing one thing when we connect them to the big
scheme, and I think the facts connect them to every purchase here.
       “Whether it was done online, whether it was done in a different state, they had the
account numbers. They engaged in this conspiracy with themselves and with somebody
else to do it. Whether we charged it or not, as I put pains to show, doesn’t matter. That’s
not the test for determining restitution, that they were charged with all uses.
       “In fact, it’s totally impractical when we finally arrest somebody, when we happen
to catch them using a credit card in one store that we can prove every crime that they




       15
            The Excel spreadsheet lists charges over several months, not one weekend.

                                                  9
used along the road to that misuse of the credit card. That would be an unreasonable
burden on us, and it doesn’t make sense.
        “It only—the only question is it logical? Is it reasonable? Have we established
enough to show a scheme? Is there a connection between their use and these card uses?
And I believe we’ve done this.”
        On June 24, 2015, the trial court stated that it considered all challenges but
concluded that Lockett is responsible for all charges made on September 7, 2012, as
“fairly attributable” to him and “within the scope of what was discussed as part of his
plea and what the law permits to be attributed to him.” On June 25, 2015, the trial court
ordered Lockett to pay restitution of $1,693.29.
                                          DISCUSSION
        Lockett contends that his restitution exposure should be limited to the amounts
from counts 1 and 2 since he was never charged in counts 3 and 4; the restitution award
constituted an abuse of discretion because he was not given “a fair restitution hearing to
dispute the amount of restitution owed the victim”; and “the arbitrary and capricious
restitution order” violated his federal constitutional right to due process of law.
        The California Constitution mandates the imposition of restitution. (Cal. Const.,
art. I, § 28, subd. (b).) Penal Code section 1202.4, subdivision (f) requires full restitution
based on the loss: “[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 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.”
Subdivision (f)(3) of section 1202.4 directs the trial court to prepare the restitution order,
which “shall identify each victim and each loss to which it pertains, and 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,
including, but not limited to, all of the following: [¶] (A) Full or partial payment for the
value of stolen . . . property . . . .”



                                              10
        Section 1202.4, subdivision (f)(1) provides: “The defendant has the right to a
hearing before a judge to dispute the determination of the amount of restitution.”
        In calculating the amount of restitution, the trial court must use “‘“a rational
method that could reasonably be said to make the victim whole”’” and may not make an
order which is “‘“arbitrary or capricious.”’” (People v. Holmberg (2011) 195
Cal.App.4th 1310, 1320.)
        Generally, this Court reviews a restitution order to determine whether the trial
court abused its discretion. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.)
        Restitution may include losses based on dismissed counts where, as here, the
defendant enters a valid Harvey waiver. (§ 1192.3; People v. Harvey (1979) 25 Cal.3d
754, 758; People v. Ozkan (2004) 124 Cal.App.4th 1072, 1078.) However, even where
there is a valid Harvey waiver, if the defendant contests the allegations in the uncharged
or dismissed offenses, “the prosecution bears the burden of proving the allegations by a
preponderance of the evidence.” (People v. Weatherton (2015) 238 Cal.App.4th 676,
681.)
                                               I
        Lockett contends that his restitution exposure should be limited to the amounts
attributable to counts 1 and 2, as it was Chappill, and not he, who was charged in counts
3 and 4 and that those counts were dismissed before he entered his plea.
        This contention is without merit, because Lockett agreed to pay charges associated
with Chappill’s counts, counts 3 and 4. The restitution amount would have properly
included the amounts of Chappill’s charges had she succeeded in making purchases with
the counterfeit Discover Cards at the Glendale Galleria on September 7, 2012, because
Lockett consented to do so. At the plea hearing, Lockett entered his Harvey waiver and
agreed to pay restitution on all four counts, including the dismissed counts; he agreed on
the record to pay for charges for “any activity . . . alleged in counts 1, 2, 3 and 4.”
Moreover, Lockett and Chappill were working together; each used similarly-
counterfeited credit cards at the same shopping center on the same day and Chappill had
possession of Lockett’s GAP receipt in her handbag. If Chappill had completed any

                                              11
purchases using the faked credit cards at the Glendale Galleria on September 7, 2012,
then those charges would have been transactionally related to Lockett, and the trial court
could have included those purchase amounts as part of the restitution that Lockett was
ordered to pay.
        However, not only have the People presented no evidence that Chappill made any
such purchases, the People stated in the motion below that GAP and Nordstrom rejected
her card before she could conclude each transaction. Accordingly, as the record now
stands, Chappill was unable to charge any amounts on any of the cards at the Glendale
Galleria on September 7, 2012, so counts 3 and 4 have zero purchases attributable to
them.
                                               II
        Lockett contends that, at the restitution hearing, he was denied the opportunity to
dispute the amount of restitution owed the victim. We agree.
        First, in the restitution motion, itself, the People failed to provide notice to Lockett
of the amount of restitution sought, leaving the amount blank. The pertinent sentence
reads: “The total sum owed to the named victim, as dictated by the terms of PC § 1202.4
                                                                      16
and W&I § 730.6 and applied to the facts of this case, is $      .”
        Next, the People did not carry the burden to show by a preponderance of evidence
that Lockett or Chappill had anything to do with the out-of-state charges. We note that
the People presented evidence that Lockett does not dispute: Lockett and Chappill used
faked cards on September 7 at the Glendale Galleria. As to the other charges, however,
the People failed to show any nexus with Lockett or Chappill. The charges on the Excel
spreadsheet ranged from June through September 2012, with some charges predating the
Glendale Galleria episode and other charges incurred after authorities had arrested
Lockett and Chappill and had confiscated the cards. Yet, the Excel spreadsheet does not


        16
          While we consider the People’s citation to restitution for juvenile offenders
under the Welfare and Institutions Code to be superfluous, we question the citation as
there is nothing in the record to indicate that Lockett is a minor.

                                               12
separate out the postarrest charges on the faked cards that would have been impossible
for Lockett and Chappill to use because they no longer were in possession of those cards.
In addition, the “location” of the transactions ranged from Washington to Texas to New
York. The People presented no evidence that Lockett and Chappill were at a Walmart in
East Puyallup in Washington on September 7 or at a Macy’s in Bloomington, Minnesota
on September 3, or in any location (except Glendale) where the charges originated.
While the trial court did not consider these particular aforementioned charges, the People
also failed to provide information on how Lockett or Chappill charged an Alaska Airlines
ticket in Arizona at 9:14 a.m., on September 7, the same day they were in Glendale.
       Moreover, the People provided no declarations or documentary support as part of
the motion for restitution. It was Lockett, not the People, who provided the Discover
Card Excel spreadsheet, Micioni’s email to Zaun, and the Glendale Police Department
report to the trial court by attaching those documents to his response to the People’s
motion.
       Even with those documents before the trial court, the People failed to provide any
evidence whatsoever that Lockett and Chappill made any purchases remotely. What the
People proved was that Lockett and Chappill used tangible cards in a bricks-and-mortar
retail shopping center to buy tangible goods on the same day. Those who fraudulently
used the account numbers to buy airplane tickets and make a hotel reservation employed
a completely different modus operandi. The same account numbers (but no tangible
cards) were used to purchase services, not goods, on September 7 and other dates, and
those purchases may have originated in states other than California. To have carried the
burden to show by a preponderance of the evidence that the out-of-state purchases were
transactionally related to Lockett or Chappill, the People would have had to present
additional evidence—for example, that the purchases originated, by telephone, internet or
other remote-access system, in a location where Lockett or Chappill could have been.
       Finally, assuming the People met the threshold of preponderance of the evidence
on the out-of-state charges and the burden shifted to Lockett, the People give no hint as to
what evidence Lockett could have provided to fulfill his burden and we cannot think of

                                            13
any. Without the People’s having provided a list of where and in what modality the
charges originated, we see no way that Lockett could have presented any contrary
evidence to show that neither he nor Chappill bought the plane tickets and made the hotel
reservation. The only option for Lockett was to challenge the evidence by confronting
the Discover Card representative who authored the Excel spreadsheet. Not having had
the opportunity to do so, Lockett did not have a fair restitution hearing. The trial court
must either recalculate the restitution awarded to exclude the out-of-state charges or
conduct a new hearing at which Lockett will have the opportunity to examine the
Discover Card loss prevention officer.
                                             III
       Lockett contends the order violated his constitutional rights to due process of law.
We agree. The People simply failed to comply with the federal and state Constitutions,
which prohibit the state from depriving a person of life, liberty, or property without due
process of law. (U.S. Const. amend. XIV; Cal. Const., art. I, § 7.)
       Again, in the restitution motion, itself, the People failed to provide notice to
Lockett of the amount of restitution sought. Due process required the People to give
Lockett notice of the amount that the People sought as restitution. (People v. Cain (2000)
82 Cal.App.4th 81, 86; People v. Thygesen (1999) 69 Cal.App.4th 988, 993; People v.
Resendez (1993) 12 Cal.App.4th 98, 113; People v. Sandoval (1989) 206 Cal.App.3d
1544, 1550.)
       Beyond the failure to provide notice of the amount of restitution sought, the
People provided no declarations or documents as part of their motion. Even the
documents that were before the trial court listed charges, such as the ones made at a
Walmart in Washington, that seem to have been made at a bricks-and-mortar location.
Yet others, the locations of which are as far apart from each other as New York and
Arizona, do not indicate whether the charges were made remotely and, if so, if the
charges originated in California. The spreadsheet, by itself, is insufficient because it sets
forth nothing to show any of these essential facts nor set out why some charges might be
attributable to Lockett and Chappill while others are not so attributable.

                                             14
       The People should have, at least, provided the declaration of Micioni, or another
knowledgeable employee of Discovery Financial Services, to explain where the charges
were made and whether they were made remotely or in person; restitution evidence may
be presented by hearsay. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048
[victim’s written statements and attached receipts support restitution calculation]; People
v. Cain (2000) 82 Cal.App.4th 81, 86.) Although we acknowledge that Lockett does not
have a Sixth Amendment right of confrontation at a restitution hearing (People v. Cain,
supra, 82 Cal.App.4th at p. 86), we note that, if the People had been unable to secure
such a declaration, the People could have brought Micioni, whose office is locally in
Burbank, to interpret the spreadsheet.
                                      DISPOSITION
       The order of restitution is reversed and the matter is remanded to the trial court for
further proceedings consistent with this decision.
       NOT TO BE PUBLISHED.




                                                         CHANEY, Acting P. J.


WE CONCUR:



              JOHNSON, J.



              LUI, J.




                                             15
