P. v. Flowers



















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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. LISA MARIA FLOWERS, Defendant and Appellant.

B237682 (Los Angeles County Super. Ct. No. LA068019)

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">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 href="http://www.mcmillanlaw.com/">grand theft. (Pen. Code, § 487, subd.
(a).)href="#_ftn1" name="_ftnref1"
title="">[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 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 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 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.)

name="______#HN;F3">When a defendant is sentenced to
prison, section 1202.4 limits the scope of victim name="SR;1394">restitution to losses caused by the href="http://www.mcmillanlaw.com/">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].)

name="citeas((Cite_as:_2012_WL_2854226,_*3_(Ca">When victim
restitution is ordered in conjunction with a grant of name="SR;1576">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 name="sp_999_2">People
v. Martin (2010) 51 Cal.4th 75, 82;
People v. Carbajal (1995) 10
Cal.4th 1114, 1121.)

name="______#HN;F8">name="SDU_1053"> 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.

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. name="______#HN;F6">

name=B12015726703> 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: name="_GoBack">“[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.

DISPOSITION

The
judgment is affirmed.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We
concur:







CROSKEY, J.









ALDRICH, J.