Filed 4/2/13 P. v. Flowers CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE


THE PEOPLE,                                                              B237682

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. LA068019)
         v.

LISA MARIA FLOWERS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Jessica Silvers, Judge. Affirmed.
         Jennifer Hansen, 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, Assistant Attorney General, Kenneth C. Byrne and Shira B.
Seigle, Deputy Attorneys General, for Plaintiff and Respondent.

                                             _________________________
       Lisa Maria Flowers appeals the judgment entered following her plea of no contest
to one count of grand theft. (Pen. Code, § 487, subd. (a).)1 Flowers contends the order
directing her to pay victim restitution to family members of the named victim must be
stricken as unauthorized by her plea bargain or sections 1192.3 and 1202.4. However,
Flowers agreed to pay actual restitution to any victim, if appropriate, and the family
members of the named victim themselves qualify as victims for the purpose of restitution.
(§ 1202.4, subd. (k)(3)(A) & (k)(3)(B).) We therefore find no violation of Flowers’s plea
bargain or the cited statutes and affirm the judgment.
                    FACTS AND PROCEDURAL BACKGROUND
       The report of the probation officer indicates Flowers worked as a care provider to
the elderly. She stole cash and property, primarily jewelry, from the homes of her
employers and their friends. She was charged by complaint with three counts of grand
theft and three counts of petty theft with prior theft related offenses. Shirley Dubin was
the named victim in counts 1 and 4; Florence and Edward Shevick were the named
victims in counts 2 and 5; and, Betty Avidan was the named victim in counts 3 and 6.
The complaint further alleged the victims were over the age of 60 years and that Flowers
had been convicted of theft related offenses in 1999, 2002 and 2007, and had served a
prior prison term within the meaning of section 667.5, subdivision (b).
       Pursuant to a plea bargain, Flowers pleaded no contest to grand theft in count 1 in
exchange for a sentence of two years in state prison and dismissal of the remaining
counts. Flowers initialed a box that indicated she understood the trial court would order
her, “if appropriate, [to] pay actual victim restitution to any victim.” Before accepting
Flowers’s change of plea, the trial court indicated that, as part of the plea agreement,
Flowers would be expected to pay restitution for losses on all counts pursuant to
People v. Harvey (1979) 25 Cal.3d 754.
       Thereafter, the trial court conducted a restitution hearing at which Shirley
Dubins’s daughter, Heather Dubin, testified her mother is 86 years of age and she suffers


1
       Subsequent unspecified statutory references are to the Penal Code.
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from macular degeneration and dementia. In February of 2011, the family met at
Shirley’s home, itemized her jewelry and placed it in a secure place. At the start of
March, Heather hired Flowers to care for Shirley. Shortly thereafter, Shirley’s home
flooded. On March 20, 2011, Heather moved Shirley and her jewelry to Heather’s home
and, for several months, Flowers and Shirley lived in Heather’s home. Heather testified
Shirley’s jewelry valued at $42,9084.80 was missing from her home. Also, after Flowers
began working in Heather’s home, Heather noticed a camera and a flat iron were missing
and $2,000 in cash her son was saving was taken from a wall safe.
       Florence Shevick’s daughter testified with respect to the value of the jewelry
Flowers took from her mother.
       The People requested an order for restitution in the amount of $42,984.80 to
Shirley Dubin, $2,210.88 to Heather Dubin and $43,000 to the Shevicks.
       Defense counsel argued restitution in the large amounts being requested should
not be granted based on hearsay and asserted Heather Dubin’s valuation of her mother’s
jewelry was “pure speculation.”
       The trial court rejected defense counsel’s argument, noting the daughters
personally were victims with respect to the lost jewelry as they have been denied the
inheritance and the pleasure of handing the jewelry down to their children. The trial
court indicated it was competent to make credibility and valuation determinations without
supporting documents, noted both daughters had testified credibly and ordered restitution
in the requested amounts.
                                    CONTENTIONS
       Flowers contends the restitution order as to Heather Dubin violated the terms of
the plea bargain and was not authorized by sections 1192.3 or 1202.4.
                                      DISCUSSION
       1. The claim of error was not raised in the trial court and thus has been forfeited.
       As noted by the People, Flowers’s claim is forfeited because she failed to object to
the imposition of the restitution order as to Heather in the trial court. “[C]omplaints
about the manner in which the trial court exercises its sentencing discretion and

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articulates its supporting reasons cannot be raised for the first time on appeal.”
(People v. Scott (1994) 9 Cal.4th 331, 356.) The forfeiture rule applies to restitution
orders. (People v. Bradley (2012) 208 Cal.App.4th 64, 90; People v. O’Neal (2004)
122 Cal.App.4th 817, 820; People v. Le (1995) 39 Cal.App.4th 1518, 1523;
In re S.S. (1995) 37 Cal.App.4th 543, 547-548.)
       Here, Flowers objected in the trial court that Heather’s testimony was hearsay and
her estimates of the value of Shirley’s jewelry were speculation. She did not claim the
$2,210.88 portion of the restitution order requested by the People for property taken from
Heather and her son was unauthorized or violated the terms of her plea bargain. Thus,
under the above authority, these arguments have been forfeited.
       However, even viewed as an unauthorized sentence that may be attacked at any
time (see People v. Smith (2001) 24 Cal.4th 849, 852; People v. Zito (1992)
8 Cal.App.4th 736, 741-742), the claims fail on the merits.
       2. No error in the order for payment of victim restitution to Heather.
       Flowers concedes restitution was proper with respect to the victims of the
dismissed counts because she submitted a Harvey waiver. However, Flowers did not
agree to pay restitution to other unnamed victims or victims of uncharged crimes.
Flowers argues that, because Heather was not named as a victim in the complaint, the
trial court violated the plea bargain and abused its discretion when it ordered Flowers to
pay victim restitution to Heather. Flowers further contends the victim restitution order
was not authorized by sections 1192.3 or 1202.4, which respectively require a Harvey
waiver before restitution may be ordered with respect to a dismissed count, and limit
restitution to losses from offenses as to which the defendant is “convicted.”
       Flowers’ arguments are not persuasive.
       The California Constitution states: “It is the unequivocal intention of the People
of the State of California that all persons who suffer losses as a result of criminal activity
shall have the right to seek and secure restitution from the persons convicted of the
crimes causing the losses they suffer. [¶] Restitution shall be ordered from the convicted
persons in every case, regardless of the sentence or disposition imposed, in which a crime

                                              4
victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.”
(Cal. Const., art. I, § 28, subd. (b).)
       These constitutional provisions are implemented by section 1202.4. (People v.
Giordano (2007) 42 Cal.4th 644, 651-652.) Subdivision (f) of section 1202.4 provides:
“[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.” (§ 1202.4, subd. (f).)
We review a restitution order for an abuse of discretion. (People v. Giordano, supra,
at p. 663.) In so doing, we construe the right to restitution broadly and liberally.
(People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
       When a defendant is sentenced to prison, section 1202.4 limits the scope of victim
restitution to losses caused by the criminal conduct for which the defendant sustained the
conviction. (People v. Woods (2008) 161 Cal.App.4th 1045, 1049 [defendant not
required to pay restitution for economic loss resulting from murder when he was
convicted as an accessory after the fact only]; People v. Lai (2006) 138 Cal.App.4th
1227, 1249 [portion of the restitution order attributable to fraudulently obtained aid
before charged period invalidated].)
       When victim restitution is ordered in conjunction with a grant of probation, this
limitation does not apply. Because “[p]robation is ‘an act of clemency and grace,’
[citation] not a matter of right,” the trial court can impose probation conditions that it
could not otherwise impose. (People v. Anderson (2010) 50 Cal.4th 19, 32.) Thus,
where probation is granted, restitution is not limited to damages specifically caused by
the crime of which the defendant was convicted. (See People v. Martin (2010) 51 Cal.4th
75, 82; People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
       Here, Flowers was sentenced to prison. The restitution ordered therefore must
relate to a loss caused by the criminal conduct for which Flowers sustained the
conviction, namely, taking property from Shirley Dubin while Shirley resided in the
home of her daughter Heather Dubin.

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       As relevant here, a victim for purposes of section 1202.4 includes a person who
sustained economic loss as a result of the crime and was a child of the victim at the
time of the crime or was living in the household of the victim at the time of the crime.
(§ 1202.4, subd. (k)(3)(A)-(B); see People v. Runyan (2012) 54 Cal.4th 849, 856.)
       Heather is the child of Shirley, the named victim, and Heather’s son lived in
Shirley’s household at the time of the crime. Thus, Heather and her son qualify as
victims statutorily entitled to restitution. Further, Flowers agreed, in writing, to pay
“actual restitution to any victim.” Absent any indication otherwise, the statutory
definition of relevant terms, including the definition of a victim for the purposes of
restitution, is presumed to have been considered by the parties and incorporated into their
plea agreement. Thus, the order directing Flowers to pay restitution in the amount of
$2,210.88 to Heather to compensate Heather and her son for property taken from
Shirley’s household was not a violation of the plea agreement or the relevant statutory
provisions.
       Flowers complains this result is inconsistent with the stated factual basis for her no
contest plea, which the prosecutor stated during the change of plea as: “[D]uring the
course of working as a healthcare provider[, Flowers] stole jewelry and other items from
that specific individual.” Based thereon, Flowers asserts she was not on notice as to
losses for unnamed victims. However, the quoted statement addressed only the factual
basis for the no contest plea. It was not related to the permissible scope of restitution
which, as set forth above, properly extended to losses suffered by Heather and her son
who, as members of Shirley’s household, are statutorily recognized victims for the
purpose of restitution.




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          KLEIN, P. J.


We concur:



             CROSKEY, J.




             ALDRICH, J.




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