Filed 3/28/13 P. v. Wilson CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D061767

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD234221)

MARKEVIN WILSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard S.

Whitney, Judge. Affirmed.


         In this appeal, Markevin Wilson challenges the amount of victim restitution he

was ordered to pay as a condition of probation. We reject his claim of error and affirm.

                         FACTUAL AND PROCEDURAL BACKGROUND

         Markevin Wilson and two codefendants, Roy Winters and Jessica Wise, were

prosecuted for a number of theft-related crimes, including conspiracy to commit grand

theft. The crimes arose from the unauthorized telephone transfer of money from three

Navy Federal Credit Union (NFCU) accounts to NFCU accounts belonging to appellant
and Wise, and to Winters via Western Union. The victims were former United States

Marines assigned to the 1st Tank Battalion who had served together in the same unit and

were previously stationed at Twentynine Palms, California. Appellant and Winters, good

friends since high school, were also former Marines who had been stationed at

Twentynine Palms; appellant was assigned to the 3d Tank Battalion and Winters to the

1st Tank Battalion.

       Starting in the afternoon of January 17, 2011, and ending on January 19, NFCU

received approximately 17 cell phone calls concerning these three accounts. The callers

provided victim identification information about the account holders, including Social

Security numbers and dates of birth—information imprinted on the "dog tags" the victims

wore while on active duty. The information was sufficient to permit the withdrawal of

funds from the victims' accounts to other accounts. One cell phone belonged to appellant

and the other to Winters. For all but one of the calls, the voice of the male caller sounded

the same. In some of the calls, other voices could be heard in the background providing

the caller with information responsive to NFCU inquiries.1

       In January 2011, appellant lived in Lakeside with three roommates and often had

contact with his codefendants. Wise, the girlfriend of one of the roommates, routinely

spent the night at the house and used the Lakeside address on her driver's license.




1      One of the victims informed the probation officer that he believed appellant was
the cousin of a Marine assigned to a supply unit who would have access to personal
information.
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Winters, a frequent visitor to the house, also used the Lakeside address on his license and

received his mail there.

       On January 18 at 3:23 a.m., in response to a telephone request, NFCU transferred

$13,500 from victim Robert Lloyd's NFCU account to appellant's NFCU account. At

about 9:00 a.m., appellant withdrew $9,550 in cash from his account at an NFCU branch

in Mission Valley.2 Lloyd did not know appellant or Winters and did not authorize the

use of his personal information or the withdrawal of funds from his account.

       Similarly, on January 18 at about 10:30 a.m., $500 was transferred telephonically,

without permission, from victim Todd Denny's3 NFCU account to Western Union for the

benefit of Winters. On January 19, $6,300 was transferred telephonically, without

permission, from victim Samuel Suddarth's NFCU account to Wise's NFCU account.

Later that day, Wise withdrew that $6,300 from her account at the NFCU branch in

Santee.

       As a result of these activities, appellant, Winters and Wise were charged with

conspiracy to commit grand theft (Pen. Code,4 § 182, subd. (a)(1)), including six overt



2      Because there was a zero balance in appellant's account when the funds were
credited to his account and he was delinquent in loan payments to NFCU, his withdrawal
was limited to $9,550.

3    Victim Denny is referred to as "Denney" in the reporter's transcript on appeal and
"Denny" in the information. For convenience, we shall refer to him as Denny.

4      All subsequent statutory references are to the Penal Code.

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acts in support of the conspiracy. Appellant was specifically identified in overt act 1

(fraudulently requesting a telephone transfer of $13,500 from victim Lloyd's account to

his own account on January 18) and overt act 2 (personally withdrawing $9,550 from his

account on January 18).5 Appellant was also charged with two counts of violating

section 530.5, subdivision (a) (unauthorized use of personal identifying information of

victims Lloyd and Denny); two counts of violating section 487, subdivision (a) (grand

theft of personal property from Lloyd and Denny); and one count of violating section 459

(burglary as related to the withdrawal of funds from NFCU).

       The jury convicted appellant of the conspiracy count and three counts associated

with Lloyd. The jury acquitted him of using Denny's identity without permission, and the

court dismissed the grand theft charge related to Denny as the amount in issue did not

constitute grand theft.6 The court granted probation to appellant with various conditions,

including public service, a stayed term of custody, fees and fines and victim restitution in

the amount of $16,350 to NFCU (the total amount of its losses from the three fraudulent

transfers).



5      Winters was identified in the overt acts concerning the transfer of money from the
Lloyd, Denny and Suddarth accounts. Wise was identified in the overt acts concerning
the Suddarth account. Overt act 4, which alleged that Winters retrieved the $500 Western
Union check from a liquor store on January 18 was stricken before the matter was
submitted to the jury as the prosecution did not present any evidence to support this act.

6      Appellant was the only defendant to take the matter to trial. Winters and Wise,
who were charged as coconspirators and with individual counts of burglary, grand theft
and the unauthorized use of another person's identity, reached plea agreements.
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                                       DISCUSSION

       On appeal, appellant raises only one issue—the amount the court ordered in victim

restitution. Although he acknowledges the court properly ordered $9,550 in victim

restitution based on the losses from the Lloyd account, he asserts that the court erred in

including the losses from the Suddarth and Denny accounts because (1) all of his

convictions arose from the Lloyd account; (2) he was not specifically identified in the

overt acts charged in the conspiracy count relating to the Denny and Suddarth accounts;

(3) he was acquitted of fraudulently using Denny's identifying information; and (4) he

was not charged in the other nonconspiracy-related charges concerning the Suddarth and

Denny accounts. According to appellant, there was no evidence showing NFCU suffered

an economic loss "as a result of [his] conduct" as related to the Suddarth and Denny

accounts and thus this portion of the restitution order was unauthorized. (§ 1202.4, subd.

(f).) The argument fails.

                                        ANALYSIS

       The trial court is required to award restitution to a victim who has suffered

economic loss as a result of the defendant's conduct. (§ 1202.3, subd. (f).) The

restitution order shall be "sufficient to fully reimburse the victim or victims for every

determined economic loss incurred as a result of the defendant's criminal conduct . . . ."

(§ 1202.4, subd. (f)(3).) On appeal, we review the trial court's restitution order for abuse

of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) "No abuse of discretion



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will be found where there is a rational and factual basis for the amount of restitution

ordered." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.)

       A criminal conspiracy exists when there is an unlawful agreement between two or

more people to commit a crime, and an overt act in furtherance of the agreement.

(People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) The prosecution must show the

defendant intended to agree and intended to commit the offense. (Ibid.; People v.

Morante (1999) 20 Cal.4th 403, 416.) A conspirator need not personally participate in

any of the overt acts associated with the conspiracy as long as he or she conspired to

commit the crime and an overt act is committed by a coconspirator. (People v. Morante,

supra, at p. 417; People v. Cooks (1983) 141 Cal.App.3d 224, 312.) Throughout the

duration of the conspiracy, the act of one conspirator is the act of all members of the

conspiracy. Each coconspirator is responsible for the criminal acts of all other

conspirators where those acts are within the scope of the conspiracy and reasonably

foreseeable as the natural consequence of the conspiratorial agreement. (People v. Hardy

(1992) 2 Cal.4th 86,188; People v. Morante, supra, at p. 417) " ' "Once the defendant's

participation in the conspiracy is shown, it will be presumed to continue unless he is able

to prove, as a matter of defense, that he effectively withdrew from the conspiracy." ' "

(People v. Sconce (1991) 228 Cal.App.3d 693, 701.)

       Section 1203.1, subdivision (b), authorizes the payment of restitution as a

condition of probation. When the defendant is granted probation, restitution need not be

limited to amounts flowing directly from the criminal acts of which defendant was

                                             6
convicted. (See People v. Lent (1975) 15 Cal.3d 481, 486.) "Under certain

circumstances, restitution has been found proper where the loss was caused by related

conduct not resulting from a conviction [citation], . . . and by conduct resulting in an

acquittal [citation]." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Where

probation is granted, the court has broad discretion " 'to impose conditions to foster

rehabilitation and to protect public safety. [Citation.] This power includes ordering

restitution, if such a condition is reasonably related to the crime of which the defendant

was convicted or to deter future criminality.' " (People v. Woods (2008) 161 Cal.App.4th

1045, 1051; § 1203.1.)

       Here, appellant was convicted of conspiracy to commit grand theft arising from a

scheme involving the unauthorized use of the victims' identifying information to access

their bank accounts without permission and then telephonically transfer funds from their

accounts in a manner that made the funds available to the coconspirators. In less than 48

hours, and in furtherance of the conspiracy, the coconspirators successfully accessed

three accounts, resulting in a loss of $16,350 to NFCU (which reimbursed the three

account holders). As a convicted member of the conspiracy, appellant is liable not only

for his own conduct, but for the acts of Wise and Winters, whose conduct was within the

scope of the conspiracy and reasonably foreseeable. NFCU suffered an economic loss as

a result of the conspiracy and the court properly ordered appellant to pay $16,350.

       Likewise, because the court granted probation, the court had broad authority to

take into account related criminal conduct, including involving acquittals, to fashion a

                                              7
condition of probation designed to foster rehabilitation and deter future criminality. In

setting restitution the court did exactly that. At sentencing, the court referenced

appellant's exemplary service in the Marines, acknowledged his many abilities and

expressed disappointment that appellant had disregarded his military training and

education when "it came time to uphold the law." The court indicated it would consider

reducing appellant's convictions to misdemeanors in the future, but had to assess how he

performed on probation over the years. The court urged appellant to work hard, turn his

life around and comply with all conditions of probation, including victim restitution. The

court did not err in setting restitution at $16,350.

                                       DISPOSITION

       Affirmed.



                                                                                HALLER, J.

WE CONCUR:



MCCONNELL, P.J.



IRION, J.




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