Filed 3/3/14 P. v. Forest CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.111.5.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B249660
                                                                          (Super. Ct. No. 2012035768)
    Plaintiff and Respondent,                                                  (Ventura County)

v.

ERIN FOREST,

    Defendant and Appellant.



                   Erin Forest appeals her conviction by plea of receiving stolen property, i.e.,
stolen jewelry. (Pen. Code, § 496, subd. (a).)1 The trial court granted probation with 180
days county jail and ordered appellant to pay $7,840.76 victim restitution. (§ 1202.4,
subd. (f)). Appellant claims that part of the restitution award, $2,583.60, is based on an
uncharged offense and should be stricken. We affirm.
                                                Procedural History
                   Appellant was charged with two counts of receiving stolen property,
waived preliminary hearing, and entered into a plea agreement to one count of receiving
stolen property. The police and probation reports, which are the factual basis for the plea,
show the following:



1   All statutory references are to the Penal Code.
              On the evening of July 31, 2012, 1,000 pieces of jewelry worth $65,000
were stolen from Jacque Rheinish's truck. A week later, appellant and her ex-boyfriend,
Christopher Fagundes, pawned some of the jewelry at the Goldfellow Pawn Shop. Two
sales receipts established that appellant sold the jewelry on August 6, 2012 and August 7,
2012, for $305.68. Appellant suspected the jewelry was stolen and admitted selling it on
at least two occasions to buy drugs.
              Police found heroin, Ecstasy, and some of the jewlery at Fagundes'
apartment.
              The police also determined that Fagundues, accompanied by appellant,
tried to pawn more jewelry (Rheinish's rings) at a gold store in Thousand Oaks.
Fagundes presented an expired driver's license and was arrested. Appellant was arrested
but not charged with receiving stolen property. The store returned the rings to Rheinish
but some of the rings were smashed or had stones removed.
              At the restitution hearing, appellant argued that the attempted sale of the
rings had nothing to do with the count on which appellant pled guilty. Appellant's trial
attorney requested that the court set the restitution amount at $5,257.16. "Miss Forest
can't be ordered to pay restitution for crimes that she hasn't been accused of."
              The trial court found that it "was a large theft, and the evidence adduced
from the testimony today is that some of the property that was determined to be
associated with the original theft was destroyed or melted in . . . the gold store, and there
was some evidence that [appellant] was there when these items were originally
transferred to the gold store . . . . I think that evidence supports a proposition that this is
part of the same plea and case. Therefore, restitution is ordered in the same amount of
$7,840.76. . . ." A restitution order was entered providing that if Fagundes is convicted
and pays pay victim restitution for the stolen rings, that appellant may seek credit for the
amount paid. (See e.g., People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.)
                                       Victim Restitution
              Appellant, as a condition of the plea, made a Harvey waiver (People v.
Harvey (1979) 25 Cal.3d 754) and agreed to pay victim restitution. It is settled that


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restitution may be ordered on uncharged offenses where probation is granted. (People v.
Carbajal (1995) 10 Cal.4th 1114, 1121.)
              Appellant's reliance on In re Maxwel (1984) 159 Cal.App.3d 263 is
misplaced. There, a minor admitted receiving a stolen car stereo and not charged with
the actual car burglary. (Id., at p. 265.) The trial court granted probation and ordered
minor to pay restitution for all losses and damages suffered by the victim, i.e., damage to
the vehicle from the break-in, vandalism, and the cost of repairing the car stereo. (Id., at
p. 265.) We reversed, holding that "the restitution must be directly related to the crime
charged and must relate to acts by the accused which are committed with the same state
of mind as the offense of which he was convicted in order that the statutory rehabilitative
effect can take place." (Id., at p. 265.) Former Welfare and Institutions Code section
729.6, subdivision (b)(3) limited "restitution as a condition of probation to only those
losses proximately caused by the criminal conduct which the accused has been found to
have committed." (Id., at p. 266.)
              Unlike Maxwell, this is not a juvenile case and the evidence connects the
appellant to the stolen rings. Appellant suspected the rings were stolen and accompanied
Fagundes to the store. Possession of stolen property may be actual or constructive and
need not be exclusive. (People v. Land (1994) 30 Cal.App.4th 220, 223.) Physical
possession is not a required. (Id., at p. 224.) The prosecution was not required to go
through the formality of charging a third court of receiving stolen property (i.e., the
rings). Even if appellant was acquitted on that count, restitution would be proper.
(People v. Lent (1975) 15 Cal.3d 481, 487.) Restitution may be ordered for conduct
underlying a dismissed or uncharged count. (People v. Goulart (1990) 224 Cal.App.3d
71, 79.)
                                         Conclusion
              When ordering restitution as a condition of probation, the trial court has
broad discretion. (See e.g, People v. Anderson (2010) 50 Cal.4th 19, 32.) "[A]n order for
restitution, i.e., attempting to make a victim whole, has generally been deemed a deterrent
to future criminality [citation], and the court is not limited to the transactions or amounts


                                              3
of which defendant is actually convicted [citations] . . . ." (People v. Lent, supra, 15
Cal.3d at p. 486.) There was no abuse of discretion. (People v. Anderson, supra, 50
Cal.4th at p. 32.)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                                         YEGAN, J.

We concur:


              GILBERT, P.J.


              PERREN, J.




                                              4
                                Jeffrey G. Bennett, Judge
                           Superior Court County of Ventura
                          ______________________________




              Jolene Larimore, under appointment by the Court of Appeal, for Defendant
and Appellant.


              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and Linda C. Johnson, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.




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