Filed 1/7/14 P. v. Wright CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057080

v.                                                                       (Super.Ct.No. FMB1100044)

VIRGILIA DEMETERIO WRIGHT,                                               OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Daniel W.

Detienne, Judge. Affirmed.

         Joanna Rehm, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Elizabeth M.

Carino, Deputy Attorneys General, for Plaintiff and Respondent.




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       The People charged defendant and appellant Virgilia Demeterio Wright by

information with theft from a dependent adult (count 1 – Pen. Code, § 368, subd. (d))1

and grand theft by embezzlement (count 2 – § 487, subd. (a)). Defendant entered into a

plea agreement in which she pled nolo contendere to count 1, and count 2 was dismissed.

Pursuant to her plea agreement, the court sentenced defendant to 36 months of felony

probation; however, the court reserved jurisdiction on the imposition of victim restitution

as a term of defendant’s probation.

       After a two-day restitution hearing, the court ordered defendant pay total

restitution of $35,600 to the victim. On appeal, defendant contends the court erred in

admitting page two of exhibit 4, ordering $6,600 in restitution for money taken from the

victim’s Pacific Marine bank account, and $22,000 in restitution for money received from

the victim’s aunt. We affirm.

                                           FACTS2

       The victim, a 47-year-old man diagnosed as having the mental capacity of a

10 year old, lived with his mother who assisted him with his financial matters until she

passed away in February 2009. The defendant, an acquaintance of the victim’s mother,

assumed caretaking duties over the victim after his mother died, as she had previously


       1   All further statutory references are to the Penal Code unless otherwise indicated.

       2  The parties stipulated the police report and complaint would provide the factual
basis for the plea. Although the police report is contained in the record, we take a portion
of our statement of the facts from the probation report because the police report was not
admitted into evidence at the restitution hearing, while the probation officer’s report was.


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promised the victim’s mother she would. The victim had worked full time as a janitor on

a Marine base for the preceding 23 years. He earned approximately $1,400 a month.

      The victim testified he and his mother owned a home together. On March 12,

2009, defendant and the victim signed a contract in which they agreed to repay a loan

from the victim’s aunt and uncle, Roberta and John Gunderson, for $2,150; the purpose

of the loan was to pay for “remodification fees of $1500.00 and the first month[’]s

mortgage [payment] of $650.00.” The victim’s home was foreclosed upon shortly after

his mother died. Defendant admitted to the probation officer she lived with the victim in

the home for six months after the victim’s mother died; she reported they were evicted

because the victim did not pay the bills. Thereafter, the two lived in an apartment from

which they were evicted after two months for failure to pay rent.

      The victim testified he never had possession of an ATM card with respect to his

Pacific Marine bank account. Rather, defendant had obtained possession of the card and

used it to make unauthorized withdrawals from his account. Defendant was later found

in possession of the victim’s ATM card. Defendant was shown printouts reflecting she

had visited casinos 20 to 25 times per month during which she withdrew money from the

victim’s bank account.

      The victim informed the probation officer defendant would give him

approximately $10 to $15 of his money each week, and withdraw the rest to spend

gambling at local casinos. The victim reported being evicted from two residences

because defendant failed to pay rent.



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        Defendant received another $22,000 from Roberta Gunderson to pay for the

victim’s care. Instead, she used the money to gamble. Defendant admitted to the

probation officer she received thousands of dollars from the victim’s aunt that was for the

victim, but which she kept for herself. When asked on what she spent the money,

defendant responded, “[i]t’s personal.” She admitted she had no intention of paying the

money back.

        Defendant acknowledged receiving $22,000 from the victim’s aunt that defendant

owed her. The victim wrote a letter that was attached to the probation officer’s report

which reads, in pertinent part, “[m]y [a]unt [] [] sent [defendant] over $20,000 since my

mother died because she said she needed it to care for me. I never saw any of it and no

bills were paid, and she didn’t pay rent so I got evicted twice.”

        The victim owned a 2005 Chevrolet Cobalt worth $7,000 that defendant convinced

him to put her name on the title so it would be easier to pay registration and make repairs.

She admitted selling the vehicle without the victim’s knowledge or permission.

        After the victim was evicted from his last residence, he showed up at his mother’s

next door neighbor’s home with nowhere to live and no money; he moved in with them.

Sometime thereafter, on August 20, 2010, defendant attempted to force the victim into

her car to take him to the bank and withdraw money for her. The neighbor with whom

the victim was living was the reporting party. Police arrested defendant on February 9,

2011.




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       The sentencing court originally reserved jurisdiction over victim restitution as

conditions of defendant’s probation for a future contested restitution hearing; however,

the sentencing minute order reflects two conditions of defendant’s probation, terms 17

and 18, required defendant to pay victim restitution of $32,097 to the victim and $22,000

to Roberta Gunderson, respectively. At the beginning of the restitution hearing, the court

noted the error, and corrected the record to reflect terms 17 and 18 had been suspended to

be reserved for imposition after completion of the restitution hearing.

                                        DISCUSSION

       A.     Admission of Exhibit 4.

       During the restitution hearing, the People sought to lay the foundation for

introduction of exhibit 4 into evidence.3 Defendant’s counsel objected noting “[t]his

seems to be evidence of an outside contract. It is not any kind of agreement to pay [the]

[victim] anything.” The court responded, “[w]ell, since this is a restitution hearing I have

wide latitude to admit all kinds of documents that [are] hearsay. Overruled, but it will be

subject to a motion to strike later.”

       The victim testified the money loaned by his uncle and aunt to he and defendant

was for the purpose of taking care of him. The prosecutor asked if the victim had ever


       3  Exhibit 4 is a two-page document. The first page is a promissory note dated
March 12, 2009, signed by defendant and the victim, promising to pay Roberta and John
Gunderson $2,150 as soon as possible, but no longer than within three years. It reflects
that $1,500 is for “remodification fees” and $650 is for the first month’s mortgage
payment. It additionally indicates the victim and defendant will repay the $1,500 for the
first and last months’ rent when the property is re-rented.


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seen the second page and if he knew what it was. The victim responded, “[s]ummary of

money and dates.” The prosecutor then asked if he had ever talked about the money his

aunt had lent defendant to take care of him. The victim answered he had not and did not

know how much money his aunt lent defendant.

       The second page of exhibit 4 appears to have a Post-it with John Gunderson’s

name placed over a portion of a copy of the promissory note. However, it additionally

contains a list of 12 dates beginning with March 1, 2009, and ending with March 25,

2010, with corresponding amounts of money. At the bottom of the list is an amount

totaling $24,250. The exhibit does not specify to whom the money was given, if it was

also a loan, or for what purpose the money was given.

       At the end of the hearing, defendant’s counsel again objected to admission of

exhibit 4, this time on the basis of relevance. Counsel noted the second page of the

exhibit had not been authenticated by anyone. The court ruled “[s]ince this is a

restitution hearing and the rights of a defendant are severely limited, and hearsay

documents are generally admissible, I’ll admit it into evidence and just give it whatever

weight I think it deserves.”

       On appeal, defendant contends the court abused its discretion in admitting the

second page of exhibit 4 into evidence. We disagree.

       A restitution hearing does not require any particular kind of proof. (People v.

Holmberg (2011) 195 Cal.App.4th 1310, 1320 citing People v. Keichler (2005) 129

Cal.App.4th 1039, 1048.) Indeed, “‘“‘“‘[S]entencing judges are given virtually unlimited



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discretion as to the kind of information they can consider and the source . . . whence it

comes.’ [Citation.]” [Citation.] [¶] This is so because a hearing to establish the amount

of restitution does not require the formalities of other phases of a criminal prosecution.

[Citation.]’”’ [Citation.]” (People v. Brunette (2011) 194 Cal.App.4th 268, 284.) We

review the admission of evidence relied upon to support the court’s restitution order for

abuse of discretion. (People v. Phu (2009) 179 Cal.App.4th 280, 283-284 [Trial court

restitution order based on speculative date of the beginning of the diversion of electrical

power reasonably corroborated by other evidence and proper where goal is to fully

compensate victim.].)

       Here, although at the hearing the victim could not testify as to what the second

page of exhibit 4 represented, he had previously informed the probation officer “[m]y

[a]unt [] [] sent [defendant] over $20,000 since my mother died because she said she

needed it to care for me. I never saw any of it and no bills were paid, and she didn’t pay

rent so I got evicted twice.” Defendant acknowledged to the probation officer she had

received $22,000 from the victim’s aunt. Page two was attached to page one, which was

properly authenticated by both the victim and defendant. Page two appeared to have a

Post-it with the victim’s uncle’s name printed on it.

       Moreover, several of the apparent deposit amounts and dates reflected on page two

are reflected in the bank statements admitted at trial. Finally, it is notable that the total

reflected on page two, $24,250, is only a $100 difference between the total of the $22,000

defendant admitted she owed to the victim’s aunt and the $2,150 reflected in the



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promissory note on page one. Thus, the court acted within its discretion in admitting

exhibit 4 in its entirety.

       B.         Restitution in the Amount of $22,000.

       Defendant contends the court abused its discretion in awarding $22,000 in

restitution to the victim when the evidence established this was a loan to her from the

victim’s aunt, not to the victim. We disagree.

       “[W]e review the trial court’s restitution order for abuse of discretion.

[Citations.]” (People v. Giordano (2007) 42 Cal.4th 644, 663-664.) “While we review

all restitution orders for abuse of discretion, we note that the scope of a trial court’s

discretion is broader when restitution is imposed as a condition of probation.” (Id. at

p. 664, fn. 7.)

       “‘At a victim restitution hearing, a prima facie case for restitution is made by

the People based in part on a victim’s testimony on, or other claim or statement of,

the amount of his or her economic loss. [Citations.] “Once the victim has [i.e.,

the People have] 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.]” [Citation.]’” (People v. Watson (Oct. 8, 2013,

D061668) __ Cal.App.4th __ [2013 WL 5530341].)

       “Further ‘the standard of proof at a restitution hearing is by a preponderance of the

evidence, not proof beyond a reasonable doubt. [Citation.] “If the circumstances

reasonably justify the [trial court’s] findings,” the judgment may not be overturned when



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the circumstances might also reasonably support a contrary finding.’ [Citations.] In

reviewing the evidence, we do not reweigh or reinterpret it; we only determine whether

there is sufficient evidence to support the inference drawn by the trier of fact.” (People v.

Tabb (2009) 170 Cal.App.4th 1142, 1153.)

       “[T]he trial court is entitled to consider the probation report when determining the

amount of restitution. A property owner’s statements in the probation report about the

value of her property should be accepted as prima facie evidence of value for purposes of

restitution. [Citation.]” (People v. Foster (1993) 14 Cal.App.4th 939, 946-947 [Fourth

Dist., Div. Two], superseded by statute on other grounds as stated in People v. Birkett

(1999) 21 Cal.4th 226, 238-245.) The “‘object of restitution is to restore the status quo

by returning to the plaintiff funds in which he or she has an ownership interest.’

[Citation.]” (People v. Giordano, supra, 42 Cal.4th 644 at p. 658.)

       Here, the court imposed restitution as a term of defendant’s probation;4 thus, its

discretion is even broader than that exercised when otherwise ordering restitution.

Defendant admitted receiving $22,000 from the victim’s aunt. Although defendant

informed the probation officer she owed the money to the victim’s aunt, she never

characterized the money as a loan. On the other hand, the victim informed the probation

officer his aunt had sent defendant over $20,000 in order to care for him. He “never saw

any of it and no bills were paid, and she didn’t pay rent so I got evicted twice.”

       4Indeed, apparently defendant had been making one hundred dollar monthly
payments toward the victim restitution in term 17 of her probation conditions as
erroneously reflected in the sentencing minute order.


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       As the court explained, “[i]t seems to me that this money was for him, and if I

made a restitution order to him of $22,000, then it would be between him and the aunt

whether he paid it back.” Thus, it was within the trial court’s discretion to conclude the

money was a gift or loan from the victim’s aunt to the victim entrusted to defendant to

care for the victim. Defendant’s failure to use the money to care for the victim supported

the ordered restitution.

       C.     Restitution in the Amount of $6,600.

       Defendant contends the court abused its discretion in awarding restitution in the

amount of $6,600 because the victim withdrew the majority of the funds himself. We

disagree.

       The People adduced evidence of the victim’s bank statements from Pacific Marine

Credit Union, which reflected a total amount of withdrawals of $6,595.755 between

January 8, 2010, and August 6, 2010. Many of these withdrawals were made at local

casinos. The victim testified he did not have an ATM card for his account, defendant did,

and defendant’s withdrawals were unauthorized. The victim also testified defendant

would phone him on various occasions and ask that he put money in her account.

       The victim informed the probation officer defendant would give him only $10 to

$15 a week for food; she would spend the remainder of his paychecks on gambling at

local casinos. Defendant and the victim were evicted from two residences due to

       5  Defendant’s opening brief reflects a figure of $6,571.75 which is $24 less than
our figure. Our figure is obtained by totaling the victim’s list of unauthorized
transactions in exhibit 1, which includes a $24 withdrawal on June 26, 2010.


                                            10
defendant’s failure to pay rent. Moreover, defendant apparently had complete control

over the victim’s finances from February 2009 to August 20, 2010, when the victim

showed up at the reporting parties’ home without any money or a place to stay. The bank

statements reflecting defendant’s withdrawals from the victim’s account only began in

January 2010; thus, at least 10 months’ worth of defendant’s control over the victim’s

finances were not reflected in the exhibits adduced at trial. Therefore, the court acted

within its broad discretion in ordering restitution in the amount of $6,600.

       Defendant argues the victim made all the withdrawals himself, predating his report

to the bank of unauthorized withdrawals beginning on June 26, 2010. She maintains she

can only be held responsible for those withdrawals totaling $1,829.75,6 which appear on

the victim’s report of unauthorized withdrawals. However, the court observed, “[t]he

Pacific Bank, $6,600, it was pretty clear from [the] [victim’s] testimony that was his

account. He never gave [the] [defendant] permission to use the money from that account

and the defendant, I think it is clear, took some of his money, she said she had a gambling

problem, so I am going to award $6,600 from the Pacific Bank account” to the victim.

Indeed, as discussed above, the victim indicated he never had an ATM card on the

account, but defendant did. Moreover, it was within the court’s discretion to make a

credibility determination that any withdrawals made by the low functioning and illiterate




       6Defendant’s brief actually lists three figures: $1,820.79, $1, 829.79, and
$1,829.75. We are using the correct figure $1,829.75.


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victim himself were coerced by the defendant and used by her for herself. The court’s

ordered restitution was within broad discretion.

                                         DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                             RAMIREZ
                                                                                    P. J.
We concur:



RICHLI
                          J.



CODRINGTON
                          J.




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