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i

G012345

IN THE

COURT OF APPEAL

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT Division Three

THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent,

vs.

JILL C., Defendant and Appellant.

APPEAL FROM SUPERIOR COURT OF ORANGE COUNTY

THE HONORABLE W .MICHAEL HAYES, JUDGE PRESIDING

Superior Court Case No. 08HF1234

_________________________________

APPELLANT’S OPENING BRIEF _______________________________

ATTORNEY

LAW OFFICES OF ROBERT K. WEINBERG

123 Main St. Suite 10

Irvine, California 92612

Telephone: (949) 123-4567

Facsimile: (949) 123-4567

Attorneys for Appellant,

JILL C.


ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................... iii

STATEMENT OF THE CASE ............................................................ 1

STATEMENT OF APPEALABILITY ................................................ 3

STATEMENT OF FACTS ................................................................... 4

ARGUMENT

I. THE CONVICTION IS NOT SUPPORTED BY

SUBSTANTIAL EVIDENCE ....................................................... 19

A. INTRODUCTION ..................................................................... 19

B. STANDARD OF REVIEW ....................................................... 21

C. THE CONVICTION OF RECEIVING

STOLEN PROPERTY IS NOT SUPPORTED

BY THE EVIDENCE ................................................................ 22

D. THE CONVICTION OF RECEIVING

STOLEN PROPERTY WITH A VALUE OF

OVER $400 IS NOT SUPPORTED

BY THE EVIDENCE ................................................................ 26

II. THE DEFENDANT IS ENTITLED TO RELIEF FROM

THE RESTITUTION ORDER ON THE GROUNDS

THAT HER DUE PROCESS RIGHTS WERE VIOLATED

AT THE RESTITUTION HEARING ............................................ 26

A. INTRODUCTION ..................................................................... 26

B. STANDARD OF REVIEW ....................................................... 28

C. THE DEFENDANT IS ENTITLED TO RELIEF ON

ON DUE PROCESS GROUNDS BECAUSE

THE HEARING PROCEDURES WERE

FUNDAMENTALLY UNFAIR ................................................ 28


iii

D. THE DEFENDANT IS ENTITLED TO RELIEF ON

ON DUE PROCESS GROUNDS BECAUSE SHE

WAS NOT GIVEN PROPER NOTICE OF THE

AMOUNT OF RESTITUTION CLAIMED.............................. 34

III. THE DEFENDANT IS ENTITLED TO RELIEF FROM

THE RESTITUTION ORDER ON THE GROUNDS

THAT THE TRIAL COURT ABUSED ITS DISCRETION

IN ORDERING A CONDITION OF PROBATION

THAT IS NOT RELATED TO THE CRIME FOR

WHICH THE DEFENDANT WAS CONVICTED ..................... 36

CONCLUSION .................................................................................... 39


iv

TABLE OF AUTHORITIES CITED

CASES Page(s) People v. Anderson (1989) 210 Cal.App.3d 414 ................................... 25, 26

In re Angelia P. (1981) 28 Cal.3d 908 ........................................................ 33

In re Anthony M. (2007) 156 Cal.App.4th 1010 ......................................... 28

People v. Carbajal (1995) 10 Cal.4th 1114 .............................. 28, 35, 37, 38

People v. Fonville (1973) 35 Cal. App. 693 ................................................ 22

People v. Gemelli (2008) 161 Cal.App.4th 1539 ........................................ 28

People v. Goulart (1990) 224 Cal.App.3d 71 ............... 27, 28, 29, 34, 35, 37

People v. Hartley (1984) 163 Cal.App.3d 126 ................................ 27, 28, 34

People v. Keichler (2005)129 Cal.App.4th 1039 .................................. 28, 33

People v. Kunkin (1973) 9 Cal.3d 245 ........................................................ 21

People v. Land (1994) 30 Cal.App.4th 220 ........................................... 23, 24

People v. Lent (1975) 15 Cal.3d at 481 ........................................... 37, 38, 39

People v. Myles (1975) 50 Cal. App. 3d 423 .............................................. 25

People v. Palmer (2001) 24 Cal.4th 856 ..................................................... 21

People v. Prosser (2007)157 Cal.App.4th 682 ........................................... 35

United States v. Powell (1984) 469 U.S. 57 ................................................ 21

People v. Richards (1976) 17 Cal.3d 614 ............................................. 37, 38

People v. Showers (1968) 68 Cal.2d 639 .................................................... 24

People v Sandoval (1989) 206 CA3d 1544 ................................................. 36

People v. Scroggins (1987) 191 Cal.App.3d 502 ........................................ 38

People v. Thygesen (1999) 69 Cal.App.4th 988. ................................... 28, 30

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v

STATUTES

California Civil Code

Section 1214(b) ............................................................................................. 3

California Evidence Code

Section 452(h) ............................................................................................. 29

Section 459 .................................................................................................. 29

California Penal Code

Section 17 ...................................................................................................... 3

Section 459/460(a) ............................................................................ 1, 2, 19

Section 487(a) ...................................................................................... 1, 2, 19

Section 496(a) ...................................................................................... 1, 2, 19

Section 1118.1 ............................................................................................... 2

Section 1181 .................................................................................................. 2

Section 1182 .................................................................................................. 2

Section 1202.4(f)(1) .................................................................................... 35

Section 1203(d) ........................................................................................... 35

Section 1203.1k ........................................................................................... 35

Section 1237(a) and (b) ................................................................................. 4

Section 1385 ........................................................................................ 2, 3, 36


1

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION THREE

PEOPLE OF THE STATE OF CALIFORNIA, )

)

Plaintiff and Respondent, )

)

v. )

)

JILL C., )

)

Defendant and Appellant. )

APPEAL FROM SUPERIOR COURT OF ORANGE COUNTY

THE HONORABLE W .MICHAEL HAYES, JUDGE PRESIDING

APPELLANT’S OPENING BRIEF

STATEMENT OF THE CASE

Appellant Jill C. was charged in a four count information as follows:

Counts 1 and 2: First Degree Residential burglary (Pen. Code1 §§

459-460(a))2 alleging that on November 21, 2007, Ms. C. entered the home

of Susan F. with intent to commit larceny,

Count 3: Grand Theft (§ 487(a)) alleging that on November 21, 2007

Ms. C. unlawfully took real property of Susan F. which had a value

exceeding four hundred dollars and

1 All statutory references, unless otherwise specified, are to the California

Penal Code. 2 Both counts were further alleged to come within the meaning of §462(a).

No G012345

Orange County

Superior Court

Case No. 08HF1234


2

Count 4: Receiving Stolen Property (§496(a)) alleging that on

November 21, 2007, Ms. C. unlawfully bought, received, concealed, sold,

withheld, and aided in concealing, selling, and withholding purses and

jewelry, property which had been stolen and obtained by theft and

extortion, knowing that the property had been so obtained.

(CT1 88-89)

Jury trial commenced on January 29, 2009. (CT1 117) At the

conclusion of the prosecution’s case in chief, the defense made an oral

motion to dismiss the case pursuant to Penal Code Section 1118.1; the

motion was denied. (CT1 123; RT2 456) On motion of the People, Count 2

(§§ 459-460(a)) was dismissed. (RT2 457)

The jury began deliberations on February 4, 2009 (CT1 129) and

continued on February 5, 2009 (CT1 133) and February 9, 2009(CT1 199).

During deliberations, the jury submitted a hung verdict to the Court on all

counts. The Court sent the jury back for further deliberations. (CT1 191;

199, RT4 807-808) Following further deliberations, on February 9, 2009,

the jury returned with a mixed verdict, finding Ms. C. not guilty as to count

3 (§ 487(a)) and guilty as to count 4 ((§ 496(a)). The jury remained hung on

count 1 (§ 459-460(a)). (CT1 200) The Court found that the jury was at an

impasse as to count 1 and declared a mistrial as to that count. (CT1 192:

200, RT4 810-811)

On June 19, 2009, the Court heard arguments and considered two

defense motions: Motion for New Trial (pursuant to §§1181 and 1182) and

Motion to Dismiss [the burglary count]. (CT1 271-275 and CT1 277-281

respectively) The Motion for New Trial was denied. (CT1 296; RT4 825-

826) Upon the Court’s invitation, the Motion to Dismiss was argued in light


3

of the Court’s authority to order restitution to the victim if the burglary

charge was dropped. (RT4 826-863) The Court ordered both parties to

prepare and submit briefs considering the issue of whether the Court can

order restitution on a charge of receiving stolen property only and what

effect a dismissal of the burglary charge pursuant to §1385 would have on

the Court’s authority to impose restitution. (RT4 861-866) The Court

continued the Motion to Dismiss pending briefing on this issue. (CT1 297)

On July 23, 2009, the Court advised both parties of its intention to

find the total amount of restitution is due as to the total loss due to the

burglary. (CT2 506) The Restitution Hearing was then held wherein the

victim of the burglary testified in open court. (CT2 506-507)

On August 4, 2009, the Court heard arguments from both parties

regarding the effect of a dismissal [of count 1] pursuant to §1385 on

restitution. The defense also moved the Court to reduce count 4 to a

misdemeanor pursuant to §17(b); that motion was heard and denied. (CT3

776) The Court dismissed count 1 (burglary) pursuant to §13853. (CT3 778,

RT V 1129-1130) The Court pronounced judgment suspending the sentence

on count 4 and sentenced Ms. C. to three years formal probation. (CT3 776)

The Court stated that restitution was ordered as to count 4, the total amount

of restitution to be given by minute order. (CT3 777)

On August 10, 2009, the Court, by Minute Order, found the amount

of restitution owed to the victim to be $145,303.00. The restitution ordered

3 Incorporating its reason for doing so by reference to statements made by the

Court on July 23, 2008 (found at RT5 878-881). The Court offers further

statements in its considerations for dismissal pursuant to §1385 at RT5 828-831.


4

on August 4, 2009 was deemed a civil judgment pursuant to §1214(b).

(CT3 779) the Order was filed on August 28, 2009. (CT3 785)

STATEMENT OF APPEALABILITY

A timely Notice of Appeal was filed on September 10, 2009

appealing the final judgment ordered on August 4, 2009. (CT3 786) A

timely Amended Notice of Appeal was filed on September 28, 2009

appealing the final judgment made on August 4, 2009 and the Order for

Restitution filed after judgment on August 28, 2009. (CT3 788) This appeal

follows pursuant to §1237(a) and (b).

STATEMENT OF FACTS

BACKGROUND

Susan F. and Jill C. were both employees of Western Medical Center

when they met approximately six years ago; Ms. F. was employed as a

physician’s assistant in the emergency room and Ms. C. as a trauma nurse

in the emergency department. (RT1 165-166; 180; RT2 274) They became

friends, traveled together and otherwise socialized with each other. (RT1

166) In 2007, Ms. C. moved in temporarily with Ms. F. and lived in Ms.

F.’s home from early April to late July, 2007. (RT1 167) During their

friendship, Ms. F. loaned many items to Ms. C. such as jewelry, purses and

clothing. (RT1 248)

While Ms. C. was living in Ms. F.’s home, Ms. F.’s father died. Ms.

C. proved very helpful to Ms. F. during this time including travelling with

Ms. F. to visit her dying father in Arizona. (RT1 168; RT2 318) Ms. F. was


5

engaged to be married at the time and after her father’s death, she asked

Ms. C. to be one of her bridesmaids in her wedding planned for November

2007. (RT1 169) She also thanked Ms. C. for her assistance during her

father’s illness and death by buying Ms. C. a Sharif handbag. (RT1 170)

Sometime later, a dispute arose over Ms. C.’s role in planning a

wedding shower that Ms. F. did not want. (RT1 175-176; RT2 287-290)

The dispute escalated and Ms. F. felt as though Ms. C. was behaving

irrationally about it. (RT1 177; RT2 290-292) Ms. F. agonized over what to

do, eventually deciding to tell Ms. C. two weeks before the wedding that

she was no longer invited to be in the wedding. (RT1 177; RT2 291-292)

Ms. F. testified that after that, Ms. C. dyed her hair jet black4 and appeared

to be disheveled at work. (RT1 180) Ms. F.’s got married on November 10,

2007; Ms. C. did not attend the wedding. (RT1 178; 179)

Ms. F. left for her honeymoon on November 17, 2007. (RT1 214)

She left her house in charge with a house sitter, Cherie D., the 22 year old

(RT1 55) daughter of Dena H., a secretary at Western Medical Center and a

friend of Ms. F.’s. (RT1 56; 217; 219) Ms. D. was expected to take care of

Ms. F.’s five cats and two dogs. (RT1 56; 217-218) Ms. D. began house

sitting at Ms. F.’s house on November 17, 2007. (RT1 215)

THE BURGLARY

On November 21, 2007, Ms. D. left Ms. F.’s house at around 9:00

a.m. and returned at around 11:00 a.m. (RT1 46; 71) When she entered

through the front door she noticed some things were out of order and that

4 Ms. F. testified that Ms. C.’s hair was black from around the time Ms. F. got

married until at least March of 2008. (RT III 640)


6

the back sliding glass door which she was sure she had closed, was about

three-quarters open. (RT1 48) She proceeded upstairs and found the

upstairs in disarray: purses on the floor, the guest bedroom closet open, dog

and cat feces littered about, drawers pulled out and clothes everywhere.

(RT1 49-51) She went back outside and called the police. (RT1 50-51)

Ms. D. only identified one pendant as missing for the police

although she believed other things were missing. (RT2 453) Ms. D. testified

that Ms. F. had about ten to fifteen purses stored in the guest bedroom

closet on two shelves but only seven or eight were left on the shelves after

the break-in; some were also scattered about on the floor but she did not

recall how many she saw on the floor. She testified that she told an officer

that some purses were missing. (RT1 101-102; 113-114) Ms. D. identified a

photograph marked as Defense Exhibit B as depicting the guest bedroom

closet as she saw it after the break-in. (RT1 112-113) A true and correct

copy of Defense Exhibit B is attached herein as Exhibit 1. Ms. D. testified

that she also noticed that a chest in the guest bedroom closet was missing5.

(RT1 96-97) Although Ms. D. had never seen its contents, Ms. F. had told

Ms. D. that she kept jewelry in the chest in the guest bedroom closet. (RT1

94)

A neighbor, Joe L., told the police that between 9:00 and 10:00 a.m.

on the morning of the November 21, 20076, he saw a small black S.U.V.

5 However, the officer who testified regarding the initial police report,

Investigator Carroll, testified that he could not recall anything in the initial police

report stating that the house sitter had reported a missing jewelry chest. (RT2 400) 6 Mistakenly referred to as March 21, 2007 in the questioning.


7

parked in Ms. F.’s driveway. (RT1 123-124) He saw a female who looked

Hispanic (RT1 139) “between her twenties and thirties” (RT 126) with

black hair and a small frame coming out (he did not describe from where)

towards the S.U.V. with something that looked like a small end table in her

hands which she put inside the S.U.V.. (RT1 125-126) She came back out –

he did not see her carrying anything – got in her car and drove off. (RT1

127) He was asked if he could identify anyone in the courtroom as the

person he observed on November 21 but he was unable to identify anyone

as that person7. (RT1 130)

Ms. F. testified that she first heard about the break- in while on her

honeymoon when she got a phone call from Ms. H. and then immediately

got a phone call from the police who were at the crime scene (RT1 183) or

she called Ms. D. after receiving a voice message from Ms. D. and a police

officer spoke to her on Ms. D.’s phone8. (RT1 222) According to Ms. F.,

the police asked her if she knew a female with shoulder-length black hair

who was 5’2”, 130 pounds and who drove a black S.U.V.. (RT1 190) She

told them yes, Jill C.. (RT1 191) Ms. F. also testified that Ms. C. drove a

black smaller version of the Mercedes S.U.V. (RT1 181) According to Ms.

F.’s testimony, the officer also asked her if she was having a personal

conflict with anyone. (RT1 228) As a way to “confirm or deny this” (RT1

191), she asked the police to look for certain items in her home, specifically

a Sharif purse, a jewelry armoire in the back of the guest bedroom and a

7 The appellant was in the courtroom. The appellant is a 48 year-old white female,

5’2” tall, weighing 132 pounds. (CT III 515) 8 She testified to the two different versions.


8

unique bracelet that she left in a dish in the master bathroom. (RT1 191-

192) She testified that the police told her the armoire was not there. (RT1

192)

Ms. F. testified that the police asked her during the phone call about

the significance of an antique armoire that was in her guest bedroom.9 She

explained that she kept her father’s ashes, photos and cards in the top

drawer of that armoire and no one knew that except Ms. C.. (RT1 194-195)

She testified that because the that drawer had been taken out and everything

in it strewn across the room, along with the missing jewelry armoire and

missing purses led her to believe it was a very personal burglary and that is

why she identified Jill C. as a suspect to the police. (RT1 232) According to

Ms. F., she had no doubt in her mind that Ms. C. broke into her house and

stole her property. (RT1 232) Ms. F. also testified that Ms. C. knew what

Ms. F.’s honeymoon plans were. (RT1 180-181)

Ms. F. testified that she told the police that she had about 300 pieces

of jewelry and loose stones in the missing armoire, but she was sure there

was more than that. (RT1 172-173) She testified that she estimated the

value of the jewelry to be around $50,000. (RT1 183; 246) She testified

that she gave Investigator Carroll an itemized list of the jewelry missing.

She compiled that list from memory and she remembered maybe one

9 The testimony was that there were two armoires, one containing jewelry which

was either in the guest bedroom closet as described by Ms. D. (RT I 92; 94) or in

the back right corner guest bedroom as described by Ms. F.. (RT I 173) The

armoire containing jewelry was the one reported as missing. (RT I 96-97; 192)

The other armoire was in the guest bedroom next to the dresser according to Ms.

D. (RT I 93) and described by Ms. F. as an antique armoire in the guest bedroom.

(RT I 194-195)


9

hundred items. (RT1 190; 246) She also testified that she never received

any of the missing jewelry back. (RT1 246)

She further testified that she had purses lined up on two shelves in

the guest bedroom closet. All of her handbags were in this closet. (RT1

171) Among these purses were a couple of Sharif handbags and a Guess

bag but most were Louis Vuitton purses and wallets. Some of the bags were

authentic, some were not. (RT1 184) She described a photograph, identified

as People’s 11 as a photograph of the spare bedroom closet. (RT1 185) A

true and correct copy of People’s 11 is attached herein as Exhibit 2. She

described that closet before leaving for her honeymoon as containing

mostly purses and handbags on the right-hand side and mostly wallets on

the left-hand side, as in the photograph shown in People’s 11 and that the

photograph depicted the approximate number of purses in the closet on the

day of the break- in. (RT1 189; RT2 267; 269) She described the wallets

and other types of Louis Vuitton items as being in boxes layered several

levels. She estimated that she had 40 such items in boxes and after the

break-in, 36 were missing. (RT1 189) When asked how many Louis

Vuitton purses she had, she answered she did not know and that the picture

in the closet shows maybe 40. (RT1 256) She estimated the value of the

Louis Vuitton purses that were taken to be “10-, 15,000 maybe.” (RT1 257)

THE INVESTIGATION

Investigator Carroll of the Orange County Sheriff’s Department

testified that he was assigned to investigate the break-in of Ms. F.’s house.

(RT2 365-36) He received the crime report and noticed that the victim was

on vacation so he believed that he left a message for her to call upon her


10

return. (RT2 366) Ms. F. called him when she returned10

; he believed she

contacted him on December 3, 2007. During that conversation she provided

him with some details about what was taken and some information about

her relationship with Ms. C. and why she believed Ms. C. burglarized her

home. (RT2 367; 401) Other than Ms. C., there were never any other

suspects in the police investigation of the burglary. (RT2 402) Ms. F. told

Investigator Carroll that Ms. C. was going to be leaving for England soon

and that there was some urgency for the investigator to go speak with C.

before she left. (RT2 410-411) Investigator Carroll told her he needed a list

of what was taken, she provided a list to him in mid-December. (RT2 367-

368.)

On December 5, 2007 at 10:30 a.m. (RT2 368; 374), Investigator

Carroll along with another investigator and an assistant went to Ms. C.’s

residence (RT2 369) but found that no one appeared to be home. (RT2 370)

The assistant opened up a trash can that was placed on the street and looked

inside; shed called Investigator Carroll over. (RT2 370; 414) When he

opened up the trash can, he saw what looked to be a bunch of wood and

other debris that could be part of a jewelry box which was situated on top

of the trash. (RT2 372) They dumped the rest of the trash out but found

nothing else. (RT2 415; 417) He collected the debris and took it to Ms. F.

for identification. (RT2 373-374) Ms. F. stated that the debris appeared to

be the jewelry box taken from her. (RT2 374; 420)

10

Ms. F. testified that she returned from her honeymoon on November 28, 2007.

(RT1 214) (Note: November 28, 2007 was a Wednesday; December 3 was a

Monday; Thanksgiving did not intervene as it was the week before on November

22.)


11

At around 1:30-2:00 p.m. that same day, Investigator Carroll went

back to Ms. C.’s house. Ms. C. was in the driveway. There was a black

Mercedes compact S.U.V. parked in the driveway. (RT2 374) Investigator

Carroll contacted Ms. C.. (RT2 374-375) He described her as having hair

that was dyed black when he contacted her. (RT2 375) He told Ms. C. that a

friend of hers had been burglarized and that they needed to exclude her as a

suspect. He did not tell her right away that Ms. F. was blaming her for the

burglary or that he found the jewelry box in her trash can. (RT2 422-423)

He asked Ms. C. if he could look in her house; Ms. C. gave permission and

signed a consent form. (RT2 422-23) She was cooperative throughout and

gave the officers free reign to go through whatever they wished. (RT2 423)

She remained cooperative until he told her while in her living room that

they found the jewelry box in her trashcan and that he thought she “did it.”

(RT2 444; 453) At that point she asked for an attorney. (RT2 444)

When he searched the Mercedes S.U.V. identified as belonging to

Ms. C., he found “some Louis Vuitton Bags[,] two Louis Vuitton[-]like

wallets. He photographed the items he found as depicted in People’s #

2311

. (RT2 375-376) There was a camera in one of the bags. (RT2 376)

Inside Ms. C.’s house he found numerous12

Louis Vuitton bags, a leopard-

print Sharif brown purse, a clutch and several pieces of jewelry. (RT2 376)

The Sharif bag was significant because that was one item that Ms. F. said

11

People’s #23 is a photograph of what appears to be one large Louis Vuitton bag

and three smaller Louis Vuitton items, including one identified as a Louis Vuitton

passport holder.

12

He never quantifies the number of Louis Vuitton bags found but there are

photographs of only three found inside the house. (RT2 377)


12

had been taken; she had provided him with a description of the Sharif bag.

(RT2 377; 432-433) Ms. F. testified that the Sharif handbag she was

missing was identical to the one she had previously given Ms. C. as a gift

but she told him that Ms. C. had lost13

the one she received as a gift from

Ms. F.. (RT2 318)

The investigator was shown a photograph (People’s 19) that he took

which depicted three Louis Vuitton purses and one Coach purse that were

found in Ms. C.’s bedroom where he had also found the Sharif bag. (RT2

377; 436) The investigator testified that he asked Ms. C. where the purses

came from and she stated that some had been given to her by Ms. F. and

some were borrowed14

. (RT2 437) Investigator Carroll testified that Ms. F.

had told him that Ms. C. had returned everything she borrowed from her

before she moved out of Ms. F.’s house. (RT2 437) He also identified

another photograph (People’s Exhibit 21) of a ring he found on the

nightstand of the same bedroom. (RT2 378) He also identified a photograph

he took of a bracelet (People’s 22) that was found in a Tiffany’s bag. (RT2

378)

He photographed these items found at Ms. C.’s home based on the

information he had received from Ms. F. regarding what was taken, but

knowing there was a relationship between Ms. F. and Ms. C., he did not

13

Ms. F. testified that Ms. C. lost the handbag soon after she received it as gift.

(RT1 171; RT2 318) She further testified that Ms. C. lost the handbag while Ms.

C. was still living at her home and she had asked Ms. F. if she could borrow hers.

She returned it to Ms. F. after borrowing it. (RT2 318) 14

Ms. F. had testified that she knew Ms. C. had designer purses of her own and

that Ms. F. had given Ms. C. a medium size Louis Vuitton tote purse and a small

Luis Vuitton purse. (RT2 278)


13

feel comfortable taking items that might not be evidence, so he

photographed them as possible evidence. (RT2 378-379; 434) To the best

of his knowledge, the items still remain in Jill C.’s possession15

. (RT2 434)

THE DEFENSE

Janet H., Ms. C.’s supervisor 16

at Western Medical Center (RT2

462-463) testified that she worked with Ms. C. in November of 2007. She

stated that she has never known Ms. C. to have jet-black hair and described

her hair color as mostly dark brown or dark auburn. (RT2 463; 481) Ms. H.

also testified that she knew Ms. F. as a physician’s assistant at the medical

center. (RT2 466) Ms. H. testified that she did not notice any change in Ms.

C.’s behavior after Ms. C. was asked to drop out of Ms. F.’s wedding; Ms.

H. said that Ms. C. was always consistent. (RT2 475)

Teresa A., a nursing instructor, testified that she met Ms. C. in 1996

and that she considered Ms. C. one of her best friends. (RT2 483; RT3 512-

513) She testified that she was positive that she had never seen Ms. C. with

jet black hair. (RT2 483; RT3 518)

On the day before Thanksgiving,17

Ms. A. had a date to go out to

lunch with Ms. C.. (RT2 487) She called Ms. C. because she wanted to see

if she could stop by Ms. C.’s house to pick her up earlier than the noon hour

they had previously arranged. (RT2 487; RT3 509) She believed that she

called Ms. C. at about ten minutes before 11 in the morning. (RT3 510)

15

See also RT5 at page 956 where the Court confirms that the police never seized

the actual items as evidence.

16

Director of Emergency and Trauma Services. (RT2 462)

17

November 21, 2007 which is the date of the break-in. (RT3 509)


14

When she spoke with Ms. C. she heard pots and pans clanging in the

background. (RT3 510) She arrived at Ms. C.’s at approximately 11:05 a.m.

(RT3 511) When she arrived, she saw that Ms. C. had a lot of pots and pans

on the stove and that she was surprising Ms. A. by cooking her favorite

meal. (RT3 511) She described Ms. C.’s demeanor as happy. (RT3 511)

Barbara H., a charge nurse, testified that Ms. C. was her closest

friend. (RT3 520-521; 522) They worked together for a time and both grew

up in the same area of England. (RT3 521) She testified that they see each

other two or three times a week and that she had never seen Ms. C. with jet-

black hair. (RT3 522) She described Ms. C. as having hair color in varying

shades of brown, she allowed that it could be described as “dark” but never

black. (RT3 535) Ms. H. saw Ms. C. in the months of November and

December 2007 and did not notice any unusual behavior or anything out of

the ordinary for Ms. C.. (RT3 533)

Ms. H. had seen Ms. C. with designer purses (RT3 525) and when

shown a picture (People’s 1918

), she testified that she had definitely seen

Ms. C. with one of the purses (a brown duffel bag) which would appear to

look like the same design which was circled in the photograph. (RT3 527)

She had seen Ms. C. with designer bags when they were on vacation or

going out for dinner; she also saw the bags many times in Ms. C.’s closet.

(RT3 527-528) She then identified a purse in People’s 2019

as one that she

believed Ms. F. had given Ms. C. as a gift and testified that Ms. C. told her

18

Photograph: view of various purses/bags, white Louis Vuitton bag in center

marked for identification. (CT1 119)

19

The leopard print Sharif bag that Ms. F. testified was stolen. (RT1 202-203;

RT3 540)


15

that she did not like the purse. Ms. H. testified that Ms. C. showed her the

purse twice, both times they were at C.’s house, the second time she

showed it to her, it was in the garment bag with Ms. C.’s dress she was

going to wear to Ms. F.’s wedding. (RT3 528-529; 540-541)

Francis Z., a registered nurse, testified that she has been friends with

Ms. C. for 18 years. (RT3 548-549) Ms. Z. no longer lives in Orange

County but she sees Ms. C. several times a year. She has never known Ms.

C. to have jet-black hair. (RT3 550) Ms. Z. testified that Ms. C. has nice

purses, “many Gucci’s, Coaches and several Louis Vuitton’s.” (RT3 553)

When Ms. Z. was shown People’s 23,20

she identified it as a bag similar to

one owned by Ms. C.. (RT3 554-555)

Jack R., the next door neighbor of Jill C., testified that he had never

seen Ms. C. with jet-black hair. (RT3 558-559) Marianne R., also Ms. C.’s

next door neighbor testified that she sees Ms. C. on a daily basis. (RT3 568-

569) She testified that she had seen the purse depicted in People’s number

2021

on one occasion in August 2007 when Ms. C. showed it to her and

described it as a gift from Ms. F.. (RT3 574-575)

Frank G., a flight medic for the Los Angeles Fire Department (RT3

577; 581), testified that he had flown with Ms. C. on air ambulance

missions with Air Rescue International. (RT3 577) He last flew with her

three to five years prior to his testimony. (RT3 578; 582) He testified that

20

Photograph taken during search of Ms. C.’s house depicting, among other items,

a large tote bag which Ms. F. identified as hers (RT1 205)

21

The leopard print Sharif bag that Ms. F. testified was stolen (RT1 202-203; RT3

540)


16

they made an Air Rescue trip to Seoul Korea where they went to the market

district to buy things to bring back home. (RT3 578) He testified that he

saw Ms. C. buying designer purses in the market; he believes she purchased

three Louis Vuitton purses, all of the same type. (RT3 578-580) He

identified them as purses similar to the ones depicted in People’s number

23 and 19.22

(RT3 579) He guessed that the purses Ms. C. bought in Seoul

were knock-offs. (RT3 583)

Mary S., the sister of Ms. C.’s boyfriend, testified that Ms. C. had

been dating her brother for four and one- half years and that she had known

Ms. C. about that long. (RT3 585) She testified that she had seen her

brother give Ms. C. a necklace, a bracelet and diamond earrings as gifts.

(RT3 586) She knew her brother gave Ms. C. a diamond tennis bracelet for,

she believed, Christmas of 2006. (RT3 587) She was shown a photograph

labeled Peoples Number 2223

and she identified it as definitely the bracelet

her brother gave Ms. C.. (RT3 587-588) She was able to identify it by the

size of the diamonds. (RT3 591) She believes that her brother bought the

bracelet at a pawn shop. (RT3 592) Ms. S. also testified that Ms. C. took

care of her (Ms. S.’s) mother, Eva Y., after her mother had an accident on

October 28, 2007. (RT3 587-588)

22

People’s 23: Photograph taken during search of Ms. C.’s house depicting,

among other items, a large tote bag which Ms. F. identified as hers (RT1 205);

People’s 19 is a large Louis Vuitton which Ms. F. identified as appearing to be

hers. (RT1 203)

23

Photo of a bracelet taken during the search of Ms. C.’s house and identified by

Ms. F. as hers. (RT1 204)


17

The defense presented the testimony of Eva Y. as taken from the

transcript of the Preliminary Hearing in lieu of trial testimony.24

Ms. Y.

testified that she was the mother of Ms. C.’s boyfriend. (RT3 597) She

described an accident she had on October 28, 2007 (RT3 597-598) and

testified that following the accident Ms. C. helped her with her daily

activities for a month and a half. (RT3 599) On November 21, 2007, she

testified that Ms. C. helped her with her daily routines until sometime

between 10:00 or 11:00 a.m. when Ms. C. left to make lunch for a guest

whom she identified as “Teri.” (RT3 600-602; 607)

Dr. Francine W., Medical Director for Air Rescue International,

testified that Ms. C. worked as a flight nurse with Air Rescue International.

(RT3 613) She testified that she sees Ms. C. occasionally and has never

seen her with jet-black hair. (RT3 614) Dr. W. recalled that on the trip to

Korea in August of 2001, Ms. C. bought Louis Vuitton purses. (RT3 616)

She also testified that she observed Ms. C. carrying a Louis Vuitton purse

and other designer purses. (RT3 614-615) She was shown the photos

labeled People’s 1925

and 2326

and identified one of the purses in the

People’s 19 (RT3 617) as a large carryall purse just like one that Ms. C.

purchased for her in Korea in August of 2001. She also stated that she had

seen the white purse in one of the photographs in Ms. C.’s possession. She

24

Counsel stipulated that the witness was unavailable. The Court accepted the

stipulation. (CT1 111)

25

Photograph: view of various purses/bags, white Louis Vuitton bag in center

marked for identification. (CT1 119)

26

Photograph taken during search of Ms. C.’s house depicting, among other items,

a large tote bag which Ms. F. identified as hers (RT1 205)


18

testified that she couldn’t be 100 percent sure it was the exact same purse,

but she had also seen Ms. C. with a similar Louis Vuitton purse as depicted

in People’s 23. (RT3 615; 617-618)

THE RESTITUTION HEARING

The restitution hearing commenced on July 23, 2009. At the outset,

the Court made a factual finding for the record that it was going to find Ms.

C. responsible for the total loss even though it was not proven that Ms. C.

committed the burglary and was found not guilty of the theft. The Court

further found that even if there were some doubts, such an order would

serve the therapeutic purpose of the restitution ordered. (RT5 881)

Ms. F. was then called as the only witness to testify. Her sole

testimony was to the loss she claimed in the burglary and covers 173 pages

of the transcripts from RT5 884 to RT5 1057. Prior to the restitution

hearing, Ms. F. had provided the probation officer with approximately 165

pages of receipts for items she stated that she had lost in the burglary.

These receipts were attached to the probation report and can be found in the

Orange County Probation Department Presentence Report beginning on

page 545 of the Clerk’s Transcripts, volume 3.

For the restitution hearing, the district attorney put together a binder

(hereinafter referred to as the “district attorney’s notebook”) incorporating

the receipts Ms. F. had provided to the probation department as well as

some additional receipts Ms. F. located after meeting with the probation

officer and thus left out of the probation officer’s report. (RT5 882-883;

1021-1022; 1025-1026) The district attorney proceeded to question Ms. F.

page by page of this binder on her loss. (Beginning at RT5 891.) Some of

the items were marked with a red tab; those were items for which Ms. F.


19

was asking a higher value in restitution than the purchase price as reflected

on the original receipts. (RT5 896-897)

The first item to which Ms. F. testified that had a value at a price

higher than the price at which she purchased it was at page 5 of the district

attorney’s notebook. That item, a gold bracelet with 3.82 carats of

tanzanite was described by Ms. F. as nine grams of 18-carat gold with “D”

Block Tanzanite. (RT5 897-899) According to Ms. F.’s testimony regarding

this bracelet, the “Dow [sic]” at the time of her testimony valued “14 carat

[sic] gold” at $935.00 per troy ounce. (RT5 899) According to Ms. F., since

her bracelet was 18 carat, the price of gold in the bracelet would go up in

value from the price of 14 carat gold. She valued the gold in the bracelet at

four- or five- hundred dollars and along with the stones, the bracelet, she

opined, was probably double in value (to price she bought it) if sold at

wholesale price. (RT5 899-900) According to the sales receipt Ms. F.

provided for this bracelet, she purchased it in 2001 for $4,600. (CT2 551)

Following the testimony at the restitution hearing, the bracelet was valued

at $9,200.00 (double Ms. F.’s purchase price) for restitution purposes. (CT2

510)

At this point in the testimony, defense counsel made a running

objection to any appraisals or opinions stated as distinguished from facts in

Ms. F.’s testimony. Defense noted in this objection that if Ms. F. opined as

to the current value [of jewelry and gems], there is an inadequate

foundation for expertise as well as a built-in bias. (RT5 900) The Court

overruled the objection. Ultimately there were 19 such items which resulted


20

in an increased value of $61,79427

(CT3 510-511) pursuant to Ms. F.’s

testimony. (RT 900)

Ms. F. also provided receipts for numerous purses and related items

she said she lost in the burglary. The receipts for these items as provided in

the probation report totaled up to approximately 130 purses, 20 wallets, five

briefcases and 20 small items such as key chains, business card holders and

so on; primarily these were Louis Vuitton purses and other such items.

(CT2 553-710)

At the restitution hearing, she was questioned about these various

purse and related items. (RT5 962-985) The district attorney referred back

to the photograph of the closet to which she had testified in trial (the only

photograph she identified in trial depicting a photograph of the closet was

People’s Exhibit 11). She identified some items as authentic designer items

and some as fake (or “knock-offs”). (RT5 967)

Defense counsel objected to the amount of restitution requested on

the grounds that the restitution amount did not reflect any act she was

convicted of committing and further that there is no salutary effect for

rehabilitation purposes to attach a “bloated” restitution order to someone

who has been found not guilty of stealing. (RT5 1061- 1063)

After both the defense and prosecution made their arguments relative

to restitution, with particular attention paid to argument as to whether the

27

This amount is pursuant to the district attorney’s Restitution Amounts brief on

page 3 (CT2 510) There was another $19,315 claimed above the amount of

restitution amount in the presentence report of $64,194 which represented

additional items the victim identified as stolen after she reported her loss to the

probation department.


21

Court could order restitution given the verdict (RT5 1060-1098), the Court

completed sentencing without making a restitution order, advising that the

restitution order would be made by minute order. (RT5 1099) That minute

order, filed on August 28, 2009, ordered an amount that fully reflected that

requested by the prosecution at the restitution hearing. (CT3 785)

ARGUMENT

I. THE CONVICTION IS NOT SUPPORTED BY

SUBSTANTIAL EVIDENCE

A. INTRODUCTION

While Ms. C. was charged with violation of section 496 (Receiving

Stolen Property) along with sections 459 (Burglary) and 487 (Grand Theft),

the prosecution’s case was exclusively that Ms. C. was the burglar and

thief; not that she received the stolen property from the thief. The

prosecution presented no evidence of another participant in the crime nor

was there any evidence that Ms. C. aided or abetted another unknown

participant in the crime28

. In fact, the prosecution never offered any

evidence of Ms. C.’s receipt and/or possession of stolen property. The

prosecution’s evidence can be summed up as follows:

On November 21, 2007, a female, very generally fitting Ms. C.’s

description, was seen by a neighbor carrying what appeared to be an end

table or box from the home of Ms. F.. Ms. F.’s house sitter was gone

between the hours of 9:00 and 11:00 in the morning of November 21 and 28

The Court acknowledged as much during when considering sentencing and

restitution. The Court: “There’s no evidence that other people were there.” (RT5

1075) “Under the facts of this case . . . the only evidence we have . . .is that one

person committed this crime.” (RT5 1078)


22

these hours corresponded to the approximate time that the neighbor witness

saw the female carrying out the item. Upon the house sitter’s return, she

found Ms. F.’s house in disarray and believed some items were taken from

the house. Based on the witness’s description and a previous dispute

between Ms. F. and Ms. C., Ms. F. surmised that Ms. C. was the burglar

and thief and told the police of her suspicion. Based on that information,

the police went to Ms. C.’s house and found some discarded wood debris in

a trash can placed on a curb in front of Ms. C.’s house. The police found

nothing else in the trashcan. The police took the pieces of wood to Ms. F.

who identified it as pieces of her jewelry armoire which had been taken in

the burglary. Later that day, the police searched Ms. C.’s home and car with

her consent and cooperation. They found several Louis Vuitton items in her

car (photographed and identified as People’s #23 which depicts one large

bag and three smaller wallet-type items). In her house they found three

Louis Vuitton purses, one Coach purse, one Sharif purse, a clutch and

several pieces of jewelry. Ms. F. specifically identified the Sharif purse as

something to look for when the police searched Ms. C.’s home. The

officers photographed these items but never confiscated them. Later that

month, Ms. F. gave Investigator Carroll a list of the items she recalled were

missing. None of the jewelry or purses Ms. F. claimed as lost in the

burglary was returned to Ms, F.. The police never had any other suspects.

B. STANDARD OF REVIEW

“A conviction for receiving stolen property cannot withstand

appellate scrutiny unless substantial evidence was presented to the trier of

fact that (1) the property was received, concealed, or withheld by the

accused; (2) such property had been obtained by theft or extortion; and (3)


23

the accused knew that the property had been so obtained.” (People v.

Kunkin (1973) 9 Cal.3d 245, 249.)

The evidence presented by the prosecution concluded that the

property was stolen and that Ms. C. stole it. The jury, however, found that

Ms. C. did not steal the property. The prosecution never presented evidence

that Ms. C. received, concealed or withheld the property Ms. F. claimed as

stolen. Considering the evidence, it is curious that the jury acquitted Ms. C.

of theft but convicted her on the receipt of stolen property charge. While

inconsistent verdicts are not reviewable (United States v. Powell (1984) 469

U.S. 57, 66; People v. Palmer (2001) 24 Cal.4th 856), a criminal defendant

may seek the appellate court’s independent review of the sufficiency of the

evidence presented at the trial court. “‘Sufficiency-of-the-evidence review

involves assessment by the courts of whether the evidence adduced at trial

could support any rational determination of guilt beyond a reasonable

doubt.’” (Palmer, 24 Cal.4th at p. 863 quoting Powell, 469 U.S. at p. 67.)

“The test on appeal becomes whether substantial evidence supports

the conclusion of the trier of fact, not whether the evidence proves guilt

beyond a reasonable doubt." (Kunkin, 9 Cal.3d at p. 250.) The standard for

the substantial evidence review is whether it is reasonable for the trier of

fact to conclude that the prosecution succeeded in sustaining its burden to

prove the defendant was guilty beyond a reasonable doubt. (Id.) “The

substantial evidence rule mandates consideration of the weight of the

evidence before deferring to the conclusions drawn from the evidence by

the trier of fact. “ (Id.) The appellate court must “look to the evidence on

both sides and not limit their scrutiny to that supporting the verdict . . .

‘Their objective is not to replace the jury but to satisfy themselves that the


24

verdict is reasonable.’ [Citation.]” (People v. Fonville (1973) 35 Cal. App.

693, 704.)

C. THE CONVICTION OF RECEIVING STOLEN PROPERTY IS

NOT SUPPORTED BY THE EVIDENCE

Ms. C. was charged with receiving stolen purses and jewelry with a

value exceeding $400. (CT1 89) The prosecution presented evidence that

property was stolen but the prosecution failed to present evidence that Ms.

C. possessed any of that stolen property. The prosecution only showed that

the police found pieces of wood, a liner and a mirror in a trash can which

the police identified as Ms. C.’s trash can. (RT2 372; 414) They seized this

wood debris and showed it to Ms. F. who identified it as pieces of her

jewelry armoire. (RT2 374) The wood debris was the only evidence ever

seized and shown to Ms. F.. (RT2 434)

The police also found several purses and wallets and a few jewelry

items in Ms. C.’s house and car. (RT2 375-378) The police took

photographs of these items but never confiscated them. (RT2 434) Ms. F.

was never even shown these photographs by the police and only saw them

the Monday preceding the trial when the district attorney showed her the

photographs. (RT1 246) The police did not seize the purses or jewelry

because the investigating officer did not feel comfortable seizing items that

might not be evidence. (RT2 378-379; 434.)

According to the investigating officer’s testimony, Ms. C. told the

police that the purses and jewelry belonged to her or had been borrowed

from Ms. F.. (RT2 437) Ms. F., in fact, had testified that Ms. C. had

borrowed jewelry and purses from Ms. F. in the past (RT2 248) although

she stated that Ms. C. had returned the borrowed items. (RT2 349) Ms. F.


25

also testified that she had given Ms. C. designer purses as gifts in the past.

(RT2 278) Before the police went to Ms. C.’s home, Ms. F. described a

particular Sharif handbag for the police as one of her purses she was

missing. (RT1 191; RT2 433) Ms. F. testified that she gave Ms. C. an

identical Sharif handbag as a gift but that Ms. C. lost it while she was still

living with her (Ms. F.). (RT2 318-319) The police found a Sharif handbag

that matched the description in Ms. C.’s home. (RT2 376) Despite finding

this handbag in Ms. C.’s home, the police never seized it; they did not even

show a photograph of it to Ms. F.. (RT2 433)

The defense presented five highly credible witnesses29

who testified

that Ms. C. owned designer purses. These witnesses were even able to

identify some of the purses in the photographs taken by the police when

Ms. C.’s home was searched as photographs of purses that resembled those

purses they knew Ms. C. to own. Of particular note was that two of these

witnesses testified to seeing the Sharif handbag in Ms. C.’s possession after

she had moved from Ms. F.’s house30

. The defense presented another

witness, Mary S., who testified to Ms. C.’s jewelry and in particular to a

diamond tennis bracelet shown on People’s Number 22 which she stated

was definitely a bracelet she knew Ms. C. to own. (RT3 586; 587-588)

People’s 22 was a photograph of a diamond tennis bracelet that the police

took during the search of Ms. C.’s home and which Ms. F. testified was

hers. (RT1 204)

29

Barbara Hill at RT3 525; 527-529; 540-541. Annie Huera at RT3 553-555.

Marianne Hardwick at RT3 568-569; 574-575. Frank Garner at RT3 578-580. Dr.

Francine Vogler at RT3 615; 617-618. 30

Barbara Hill at RT3 540-541. Marianne Hardwick at RT3 574-575.


26

“Possession of the stolen property may be actual or constructive and

need not be exclusive.” (People v. Land (1994) 30 Cal.App.4th 220, 223,

footnote omitted.) It is not necessary that the defendant physically possess

the property but only requires that the defendant has a measure of control or

dominion over the stolen property. (Id. at 224.) The only stolen property in

Ms. C.’s possession, actual or constructive, that was plausibly offered into

evidence was the jewelry armoire found in Ms. C.’s trashcan. (It should be

noted, however, that the Information charged Ms. C. with receipt of stolen

purses and jewelry, not an armoire.) The armoire was the only item seized

and shown to Ms. F. by the police for identification.

Even possession of the armoire as found in the trashcan is subject to

question. It is not enough to have access to the stolen property; the

defendant must have dominion and control of the property. (Land, 30

Cal.App.4th at p. 225) While Ms. C. theoretically had both over her trash

can, she did not have exclusive control since the trash can was on the curb

and accessible to anyone. A defendant does not maintain constructive

possession to property over which she does not maintain exclusive control

if the property to which possession is imputed has been abandoned. (People

v. Showers (1968) 68 Cal.2d 639, 644.)

As to the other stolen items, the prosecution simply failed to

establish that Ms. C. possessed any of the stolen purses and jewelry Ms. F.

claimed as lost in the burglary. The evidence shows that the few purses and

jewelry items that were found in Ms. C.’s possession were legally in her

possession. The prosecution never substantiated that these items were

stolen and seemed to offer them only as evidence that Ms. C. committed the

burglary and theft, leaving the whereabouts of the 300 pieces of jewelry


27

(RT1 172-73; 241) and the approximately 40 purses and other items (RT2

256) Ms. C. allegedly stole unknown. If Ms. C. stole the items found in her

home, why didn’t the police ever confiscate them, even after Ms. C. was

charged with the crime? (RT2 439)

It is well-established that “possession of stolen property,

accompanied by no explanation or unsatisfactory explanation, or by

suspicious circumstances, will justify an inference that the goods were

received with knowledge that they had been stolen. Corroboration need

only be slight and may be furnished by conduct of the defendant tending to

show his guilt.” (People v. Myles (1975) 50 Cal. App. 3d 423, 428.) Here,

Ms. C. had more than satisfactory explanations for the purses and jewelry

found in her home and strong corroboration for her explanation. Not only

do the circumstances point to the conclusion that Ms. C. was not in

possession of any stolen property but the evidence is wholly lacking to

prove that she was.

The standard is high: "‘After the jury ... [has] found the defendant

guilty, the presumption of innocence is replaced by the presumption in

favor of the judgment, and a reversal can be ordered only if, upon no

rational hypothesis, is there substantial evidence to support the judgment.’

[Citation]" (People v. Anderson (1989) 210 Cal.App.3d 414, 432.) The

prosecution did not set out to prove that Ms. C. received stolen property; it

set out to prove that Ms. C. stole the property. The jury found that she did

not steal the property. Inasmuch as the entire case was premised on and

presented as a burglary/theft case wherein the defendant was the burglar

and the thief and evidence was never offered to explain how Ms. C. would

have come in possession of the stolen property or, most important, what


28

stolen property it was that she possessed, there is no rational hypothesis to

support the judgment.

Furthermore, to the extent that possession of the stolen property was

never established, the third element necessary to prove the defendant

received stolen property, that is, that the accused knew that the property had

been stolen, cannot be proved. Possession, however established, is a

necessary component of knowledge for how can someone know the

property they possess is stolen if they don’t possess it? “[K]nowing

possession by a defendant of recently stolen property raises a strong

inference of the other element of the crime: the defendant’s knowledge of

the tainted nature of the property.” (Anderson, 210 Cal.App.3d at p. 421.)

D. THE CONVICTION OF RECEIVING STOLEN PROPERTY

WITH A VALUE OF OVER $400 IS NOT SUPPORTED BY

THE EVIDENCE

Even if this Court should find that Ms. C. was properly convicted of

receiving stolen property, there was no evidence at trial that she received

stolen property with a value of over $400. Ms. C. was convicted of

receiving stolen property. Although she was found not guilty of stealing the

property, that property was charged as having a value over $400. Although

Ms. F. testified at trial in general terms to what she believed her stolen

property to be worth, the value of the stolen property was never established

at trial and, as discussed in the section above, it was never proved at trial

exactly what stolen property Ms. C. actually received or possessed. The

jewelry armoire, being the only item for which any evidence was presented


29

as stolen property that could possibly be construed as in Ms. C.’s

possession, was specifically valued at the restitution hearing at $189.00.

(CT2 509) Therefore, even if this Court allowed that Ms. C. is guilty of

receiving stolen property, that property did not have a value of over $400.

II. THE DEFENDANT IS ENTITLED TO RELIEF FROM THE

RESTITUTION ORDER ON THE GROUNDS THAT HER DUE

PROCESS RIGHTS WERE VIOLATED AT THE RESTITUTION

HEARING.

A. INTRODUCTION

The Probation Department Presentence Report informed the

defendant that the victim was requesting a restitution amount of

$64,193.63. (CT3 521) At the restitution hearing, Ms. F. testified to an

amount of loss that considered not only what was presented to the probation

officer but also increases in value to her missing jewelry as well as items

lost but never reported to the probation officer. The amount of restitution

Ms. F. claimed at the restitution hearing was 225% of the amount stated in

the presentence report. The defendant had no previous notice that Ms. F.

would be claiming this “increase” in restitution. Ultimately, the trial court

ordered a restitution award that reflected all of the putative increases in

value of the jewelry items for which Ms. F. testified at the hearing, as well

as the additional amounts reflecting items Ms. F. testified she discovered as

missing after she provided the receipts to the probation officer and ordered

a restitution award of $145,303.00. (CT3 782)

At the close of the restitution hearing, the Court heard arguments

regarding the restitution calculations provided by the district attorney

exclusively pursuant to Ms. F.’s testimony in the hearing. These amounts


30

reflected exactly the values Ms. F. testified to with only the subtraction of

some lost wages Ms. F. claimed, and was impeached upon at the hearing.

Defense counsel objected to the increases in value arguing that there was no

previous notification to the defendant regarding the increase in restitution

that Ms. F. would seek. (RT5 1079-1080) As counsel noted, it took defense

completely by surprise. (RT5 1080) The prosecution responded by

observing that it was the defendant who had the burden of proof to show

that the victim’s estimate exceeds the replacement costs. (RT5 1094) The

prosecution cited People v. Goulart (1990) 224 Cal.App.3d 71 and People

v. Hartley (1984) 163 Cal.App.3d 126 in support. (RT5 1094)

B. STANDARD OF REVIEW

It is generally held that the appellate court reviews a restitution order

for abuse of discretion. (People v. Gemelli (2008) 161 Cal.App.4th 1539,

1542; In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016; People v.

Thygesen (1999) 69 Cal.App.4th 988.) Under such a standard, the appellate

courts are reminded that the trial court’s discretion to award restitution is

not unlimited. (Thygesen, 69 Cal.App.4th at p. 992) While ‘“the standard

of proof at a restitution hearing is by a preponderance of the evidence, not

proof beyond a reasonable doubt . . .[t]he trial court ‘“‘must use a rational

method that could reasonably be said to make the victim whole, and may

not make an order which is arbitrary or capricious.’”’ (People v. Keichler

(2005)129 Cal.App.4th 1039, 1045. internal citations omitted.) A restitution

award that, considering all circumstances, exceeds the bounds of reason

warrants reversal. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)





31

C. THE DEFENDANT IS ENTITLED TO RELIEF ON DUE

PROCESS GROUNDS BECAUSE THE HEARING

PROCEDURES WERE FUNDAMENTALLY UNFAIR.

The prosecution cited People v. Goulart (1990) 224 Cal.App.3d 71

and People v. Hartley (1984) 163 Cal.App.3d 126 (RT5 1094) in support of

its argument at the restitution hearing. While it is true that both Goulart

and Hartley hold that the evidentiary requirements at a restitution hearing

do not require the same level of scrutiny as that required at trial and that the

trial court may consider a wide range of factors at restitution and that the

burden is on the defendant to refute a victim’s restitution estimates, these

cases also clearly hold that there are limits to what the trial court may

consider when imposing a condition of probation, and specifically where an

order of restitution is concerned.

The Goulart court, citing both the U.S. Supreme Court and the

California Supreme Court stated that “‘an applicant for probation is

nevertheless entitled to relief on due process grounds if the hearing

procedures are fundamentally unfair.’ A condition of probation may be

deemed fundamentally unfair if the judge improperly considered unreliable

information. Due process demands penal systems be concerned with ‘the

probable accuracy of the informational inputs in the sentencing process.’

Not only is it fundamentally unfair for a court to consider false information,

but it is also unfair for it to consider evidence which is vague or

inaccurate.” (Goulart, 224 Cal.App.3d at p. 82, internal citations omitted.)

Ms. F. was allowed to testify as an “expert” on her jewelry. That was

within the trial court’s prerogative, but can the Court go so far as to allow

her “expert” testimony to be based on valuations she found on Ebay the



32

night before her testimony? (RT5 throughout) Is she allowed to value the

gold in her jewelry based on the price of gold on the “Dow” as “14-carat”

(RT5 899; 947-48; 992-993) when it is a fact that gold is not listed on the

Dow, but on what is commonly called “the commodity spot market” and

the gold that is valued on the spot market is 99.999% pure or 24-carat and

further that 14-carat gold is actually only slightly over 50% gold with a

corresponding worth relative to the spot price?31

Is she allowed to then

value her 18-carat gold as a percentage over the spot price (or the “Dow” as

she calls it) when in point of fact, 18-carat gold is only 75% of the spot

market price. (Footnote 32) Does it seem accurate that Ms. F. valued

jewelry items up to 18,000% above their purchase price of three years

earlier? (CT2 510-511) Could it be accurate that, for example, an “Imperial

Topaz” bought on Ebay for 99 cents in November of 2006 was worth

$738.00 in July of 2009, or one bought for $10.52 at the same time is worth

$1,415? (RT5 943; CT2 511; CT3 662). Does it seem reasonable that a

“Paraiba Tourmaline” purchased in 2006 for $3,695 is worth $30,000 in

2009? (RT4 902-907; CT2 510; CT3 544) Or consider these increases in

value for seven “Madeira Citrines” to which Ms. F. testified at the

restitution hearing (RT5 940-941):

31 “Judicial notice may be taken of . . . [f]acts and propositions that are not

reasonably subject to dispute and are capable of immediate and accurate

determination by resort to sources of reasonably indisputable accuracy.”

(Evidence Code section 452, subd. (h).) “The reviewing court may take judicial

notice of any matter specified in Section 452.” (Evidence Code Section 459, subd.

(a).)


33

“Madeira Citrine”

(identified by carat weight)

Purchase price 2006

(CT2 385)

Estimated Values

July 2009

(RT5 940-941)

32.50 $18.49 $1,283.72

29.14 $14.59 $1,151.03

33.16 $15.59 $1,309.82

38.71 $27.00 $1,129.00

35.06 $16.50 $1,384.87

32.34 $15.59 $1,277.43

70.20 $22.60 $2,772.90

Totals (also see CT3 511) $130.36 $10,308.8032

“As to a victim, the purpose of the restitution statute is to make that

victim whole, not to give a windfall.” (People v. Thygesen (1999) 69

Cal.App.4th 988, 995.) Clearly restitution does not give the victim carte

blanche to make any claim she wishes. It was fundamentally unfair to the

defendant for the trial court to let this testimony in, not to mention to accept

it as fact and so find a restitution award based on blatant inaccuracies and

unreliable information.

While the restitution hearing concerning the jewelry was disturbing

in itself, Ms. F.’s testimony concerning her loss of purses and related items

further impinged on the limited due process to which Ms. C. was entitled at

restitution. Ms. F.’s testimony at the restitution hearing concerning these

items was not only contradicted, but exceeds the limits of credulity.

32

Incorrectly calculated on district attorney’s Restitution Amounts brief as

$10,708.80 (CT3 511)


34

A photo labeled People’s Exhibit #11 was offered by the people at

trial which depicted the closet where Ms. F. testified she kept her purses.

Ms. F. testified that this exhibit was of a photograph taken in early 2007 of

a closet in Ms. F.’s house showing two shelves in the closet and that she

had looked in that closet before she left for her honeymoon. As she

described it, there were purses on the right-hand side and wallets on the

left-hand side; “kind of what it was in this picture [Peoples #11]”. (RT1

185-186; 188-189) She described three to four layers of wallets and other

items in boxes33

. (RT1 189) She estimated she had approximately 40 such

items in boxes but only four remained after the burglary. (RT1 189) She

stated that a few empty boxes were left but the rest were gone. (RT1 189) A

copy of People’s Exhibit No. 1134

is attached to this brief as Exhibit 2.

Referring to the number of purses depicted in People’s 11, she estimated

that she had maybe 40 Louis Vuitton purses. (RT1 256) She testified that

the photograph depicted the approximate number of Louis Vuitton purses

that she had on the day of the burglary. (RT1 269) She further testified that

all of her handbags were in this closet. (RT1 171)

Ms. D. testified that she thought Ms. F. had about ten to fifteen

purses stored in the guest bedroom closet and only seven or eight were left

after the burglary; some left on the shelves, some found on the floor. (RT1

101-102) Defense offered Defense Exhibit B into evidence (RT1 112)

which was a photograph depicting the guest bedroom closet after Ms. D.

33

She later testified that the view of the boxes are obstructed by the head of the

man in the photograph. (RT2 354)

34

Certified by Superior Court, Certificate attached as Exhibit 3.


35

returned home following the burglary. (RT1 112-113) Ms. D. testified that

the two shelves were full of purses before the burglary. (RT1 114) A copy

of Defense Exhibit B35

is attached to this brief as Exhibit 1.

When Ms. F. was questioned at the restitution hearing about the

purses and other items taken from the guest bedroom closet, she was

referred back to the photograph of the closet to which she had testified in

trial (the only photograph she identified in trial depicting a photograph of

the closet was People’s Exhibit 11). She stated at the restitution hearing

that the photograph did not represent the state of the closet on the date of

the robbery and that she had more items that depicted in the photograph.

(RT5 963) This was in direct contradiction to her testimony at trial and to

Ms. D.’s testimony at trial as summarized in the paragraphs above. It is

further noted that during Ms. F.’s interview for the Probation Department’s

Presentence Report, she told the probation officer that most of her designer

bags were on the top shelf in her closet and these bags remained

undisturbed in the burglary. (CT3 522) She told the probation officer that

the bags stolen were on the lower shelf but that she still paid quite a bit for

these “knock-offs”. (CT3 522)

There is no question that Ms. F.’s testimony at the restitution hearing

went beyond anything she had testified to or stated before. How can her

testimony at trial where she identified a photograph (People’s Exhibit No.

11) showing perhaps 40 purses as an accurate depiction of what she had at

the time of the burglary, and further that the top shelf of this closet was not

35

Certified by Superior Court, Certificate attached as Exhibit 3.


36

disturbed, suddenly turn into 130 purses36

(and often multiples of the same

item (RT5 1011-1012)), 20 wallets, five briefcases, 20 or more small items

and even shoes at the restitution hearing? Yet, that is what her receipts and

testimony claimed. (CT2 305; CT3 553-710; RT5 1011-1012) And the

Court awarded restitution on every single item.

Had she not been questioned by defense counsel during the

restitution hearing, she would have even received restitution for lost

earnings for days she claimed she was subpoenaed but, in fact, was not.

(RT5 1013-1014, 1043-1045; CT 3 5410) It was only after Ms. F. was

questioned on these inaccurate figures for lost wages she claimed at the

restitution hearing that the district attorney adjusted the restitution amount

downward to subtract for the inaccurate calculation. (RT5 1060)

“The standard of proof at a restitution hearing is by a preponderance

of the evidence . . . . The trial court ‘“‘must use a rational method that

could reasonably be said to make the victim whole, and may not make an

order which is arbitrary or capricious.’”’ (People v. Keichler (2005)129

Cal.App.4th 1039, 1046.) The preponderance of the evidence standard

“simply requires the trier of fact ‘to believe that the existence of a fact is

more probable than its nonexistence.’ ” (In re Angelia P. (1981) 28 Cal.3d

908, 918, citation omitted.) Is it more probable than not that Ms. F. lost 130

36

Her testimony that small purses were put inside larger purses does not explain

her testimony at trial that she owned approximately 40 purses. Nor is it believable

that all the small items went into the purses; she testified small items were in

boxes, yet there were only a few empty boxes scattered about after the burglary.

Therefore, logic would dictate that the small items were placed in larger purses

while still in the box thus leaving much less room. Furthermore, the items in

boxes were wallets, key purses and etc.; this would not overcome her testimony

that she had approximately 40 purses before the burglary.


37

purses, 20 smaller wallets, a number of other small items, five briefcases

and more in the burglary when she testified otherwise at trial and when she

told the probation officer otherwise? Is it more probable than not that so

many items were contained on the shelves depicted in People’s Exhibit #11

when Ms. F. herself testified at trial that that photograph more or less

represented what she had at the time she left for her honeymoon? Is it more

probable than not, that the thief (whoever that was) could have loaded up so

many items even allowing the full two hours to do so? The admonition of

the Goulart court bears repeating: “Not only is it fundamentally unfair for a

court to consider false information, but it is also unfair for it to consider

evidence which is vague or inaccurate.” (Goulart, 224 Cal.App.3d at pp.

82)

D. THE DEFENDANT IS ENTITLED TO RELIEF ON DUE

PROCESS GROUNDS BECAUSE SHE WAS NOT GIVEN

PROPER NOTICE OF THE AMOUNT OF RESTITUTION

CLAIMED.

As noted in Goulart, supra, when the defendant has ample

opportunity to present evidence which discredits the restitution estimates, it

is up to the defendant to present that evidence at the hearing. (Goulart, 224

Cal.App.3d at p. 83) Citing Hartley, supra, the Goulart court stated that

“[t]he defendant bears the burden of proving the victim's restitution

estimate exceeds the replacement cost of the stolen property.” (Goulart,

224 Cal.App.3d at pp. 83-84) And as the Hartley court noted, “[s]ince a

defendant will learn of the amount of restitution recommended when he

reviews the probation report prior to sentencing, the defendant bears the


38

burden at the hearing of proving that amount exceeds the replacement or

repair cost.” (Hartley, 163 Cal.App.3d at p. 130, footnote omitted.)

The problem with the district attorney’s argument at the hearing is

that Ms. C. had no notice of the amount of restitution recommended prior

to the restitution hearing. There was absolutely no notice prior to the

hearing that Ms. F. was going to ask for more than eighty-one thousand

dollars ($81,000) above the amount of restitution noticed in the probation

report which stated the amount of restitution as $64,193.63. (CT3 521 and

539) This additional $81,000+ represents Ms. F.’s estimates of the increase

in value on nineteen items for an additional $61,794.42 (CT2 510-511) and

the remaining $19,314.95 attributed to items Ms. F. did not previously

report to the probation office. (RT5 1021-1022) And this after Ms. F. had

almost two years to identify her loss! (RT5 1016-1018)

Had Ms. C. received proper notice in the probation report, she would

have had the opportunity to prepare a rebuttal to those amounts. Ms. C. and

her counsel were in no position to present themselves as gemologist,

jewelry or precious metals experts; how could defense prepare a solid and

reasoned rebuttal on a moment’s notice?

“The scope of a criminal defendant's due process rights at a hearing

to determine the amount of restitution is very limited: '"A defendant's due

process rights are protected when [he or she has] notice of the amount of

restitution claimed . . . , and . . . has an opportunity to challenge the figures

. . . at the sentencing hearing."' (People v. Prosser (2007)157 Cal.App.4th

682, 692, citations omitted.) Ms. C.’s limited due process rights at the

restitution hearing were violated not only because it was “fundamentally

unfair for a court to consider false information [and] to consider evidence



39

which is vague or inaccurate” (Goulart, 224 Cal.App.3d at pp. 82) but,

perhaps more important, because she was not given notice of the amount of

restitution claimed.

A defendant has the right to a court hearing to dispute the amount of

restitution or the manner in which it is to be made. (§§1202.4(f)(1),

1203(d), 1203.1k; People v Carbajal (1995) 10 Cal. 4th 1114, 1125.) The

Court exceeded the Probation Report recommendations without first

bringing that prospect to Ms. C.’s attention and affording her an

opportunity to contest it. She was therefore deprived of any meaningful

opportunity to be heard. (People v Sandoval (1989) 206 CA3d 1544, 1550.)

When a defendant is denied a reasonable opportunity to contest the

accuracy of the amount of restitution claimed by a victim, the order for

restitution must be reversed and remanded to allow the defendant an

opportunity to be heard on the issue. (Id.)

III. THE DEFENDANT IS ENTITLED TO RELIEF FROM THE

RESTITUTION ORDER ON THE GROUNDS THAT THE TRIAL

COURT ABUSED ITS DISCRETION IN ORDERING A CONDITION

OF PROBATION THAT IS NOT RELATED TO THE CRIME FOR

WHICH THE DEFENDANT WAS CONVICTED.

At the outset of the restitution hearing, the trial judge made a factual

finding for the record that he believed Ms. C. was responsible for the total

loss and that restitution for the total loss would serve a therapeutic purpose.

On that basis the Court found grounds for the restitution order (RT5 881).

However, the trial judge allowed that even if Ms. C. was not responsible for

the entire theft, he found that the restitution ordered would serve a

therapeutic purpose. (RT5 881) The trial judge did not explain how

ordering full restitution would serve such a purpose to someone who was


40

not responsible for the entire theft. The real reason for the judge’s order is

found in his repeated statements that he wanted to make Ms. F. whole and

he left little doubt that that was the sole objective of the restitution ordered.

Tasked with the decision of whether to dismiss the burglary charge

in “furtherance of justice” pursuant to section 1385, the trial judge

predicated that decision entirely on whether the victim would be able to get

100 percent restitution. (RT4 861-863) There was a considerable amount of

time spent deliberating whether a dismissal of the burglary charge pursuant

to section 1385 would affect the Court’s authority to impose restitution as

that was the Court’s sole consideration. (RT4 830-863) It was the Court’s

belief that Ms. C. was responsible for everything Ms. F. claimed as lost in

the theft and he intended to order for the full amount of the loss whether the

burglary charge was dropped or not. (RT4 855-856; RT5 878) Still, to the

very end, the trial judge was conflicted on how far authority allowed for an

order of full restitution to Ms. F. and calling it the “perfect storm for an

appellate court” he mused that the appellate court might disagree with his

ultimate order. (RT5 1066-1067; 1073-1074)

“[Statute] gives the trial court broad discretion in determining

conditions of probation. [Citation.]” (Goulart, 224 Cal.App.3d at p. 79.)

Yet, that discretion is not without limits; “it must serve a purpose specified

in the statute.” (Carbajal, 10 Cal.4th at p. 1121) Probation conditions that

do not regulate criminal conduct must be "‘reasonably related to the crime

of which the defendant was convicted or to future criminality.’ [Citation]”

(Id.) While “attempting to make a victim whole has generally been deemed

a deterrent to future criminality [Citation] ” (People v. Lent (1975) 15

Cal.3d at 481, 486), how can there be a deterrent to future criminality when


41

there is no nexus between the restitution order and the crime? The trial

court’s singular focus was on his desire to make Ms. F. whole. While this

might be a laudable goal, it cannot be achieved by tagging Ms. C. for losses

a jury acquitted her of causing. “‘As with any exercise of discretion, the

sentencing court violates this standard when its determination is arbitrary or

capricious or “‘“exceeds the bounds of reason, all of the circumstances

being considered.”’ [Citations.]’ [Citations]” (Carbajal, 10 Cal.4th at p.

1121)

“In Richards37, our Supreme Court held that absent extraordinary

circumstances probation may not be conditioned on restitution involving a

purported crime for which the defendant was acquitted.” (People v.

Scroggins (1987) 191 Cal.App.3d 502, 505.) However, the Supreme Court

37 People v. Richards (1976) 17 Cal.3d 614, disapproved on another, but

related issue in People v. Carbajal (1995) 10 Cal.4th 1114. In Carbajal, the

defendant was convicted of fleeing the scene of an accident after hitting a

parked car and leaving the scene. The defendant was ordered as a condition

of a grant of probation to pay restitution to the owner of the car he hit. The

Supreme Court concluded that the defendant was properly ordered to pay

restitution to the owner of the car. “A restitution condition in such a case

can be reasonably related to the offense underlying the conviction and can

serve the purposes of rehabilitating the offender and deterring future

criminality.” (Carbajal at p. 119.) The defendant in Carbajal, citing People

v. Richards, argued that restitution was improper because the act of driving

into the victim's car was not necessarily committed with the same state of

mind as the act of unlawfully leaving the scene. The Carbajal court

expressly disapproved Richards “‘insofar as Richards may be read to

require that trial courts refrain from conditioning probation on restitution

"unless the act for which the defendant is ordered to make restitution was

committed with the same state of mind as the offense of which he was

convicted ...’ (Richards at p. 622)” (Carbajal at p. 1126.)

http://login.findlaw.com/scripts/callaw?dest=ca/cal3d/17/614.html


42

concluded in another case, People v. Lent (1975) 15 Cal.3d at 481, that

under certain circumstances restitution has been found proper where the

loss was caused by conduct resulting in an acquittal.

In Lent the defendant challenged a restitution order that included

amounts lost by the victim that were losses resulting from a charge for

which the defendant had been acquitted. The Supreme Court noted that

restitution “must relate to past or future criminal conduct” and ordinarily

when a defendant is exonerated by the jury of criminal responsibility for the

victim’s loss, restitution for that loss would be precluded from a restitution

order. (Lent, 15 Cal.3d at p. 487.) However, the Supreme Court observed

that in the Lent case, there was a lengthy probation hearing in which seven

witnesses testified which produced further evidence suggesting the total

culpability of the defendant that was not displayed at the trial. The

Supreme Court explained that the trial court had given consideration to the

defendant’s acquittal but after the extensive probation hearing which

produced additional evidence, came to the conclusion that the state of the

record did not absolve the defendant of the acquitted charge. (Id.) Under

such circumstances, the Supreme Court found no abuse of discretion in the

probation order. (Id.)

The circumstances in the case at bar are distinguished. The probation

hearing was indeed prolonged but only to allow Ms. F. to testify to the

numerous losses she claimed she lost in the theft. Ms. F. was the sole

witness and there was certainly no additional circumstances presented in

the hearing that could have led the trial court to conclude the verdict did not

absolve Ms. C. of the acquitted theft. In fact, the Court had determined that

Ms. C. was responsible for the entire loss, which necessarily means that she


43

remained responsible for the theft for which she had been acquitted, before

the probation hearing even began. The circumstances as applied by the

Lent court simply do not apply here and the observation by the Lent Court

that when, as in this case, the theft was charged and fully tried and the

defendant was exonerated by the jury of criminal responsibility for the

theft, restitution for the acquitted charge is precluded. (Lent, 15 Cal.3d at p.

487.)

CONCLUSION

For the foregoing reasons, it is respectfully urged that this Court

reverse appellant’s conviction and probation order.

Dated: February ____, 2010

__________________________________

ATTORNEY

Attorney for Appellant,

Jill C.


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