Filed 7/30/13 P. v. Gomez CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been 

certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

LUIS BANDILLA GOMEZ, 

Defendant and Appellant. 

 H037792 

 (Monterey County 

 Super. Ct. Nos. SS101687A, 

 SS102170A) 

THE COURT: 

The above captioned opinion, filed on July 2, 2013, is hereby modified as 

follows: On page 14 of the opinion, at the end of the first full paragraph, insert the 

following footnote: 

 According to the probation officer's report, appellant wrote a counterfeit 

check to Pacific Truck Parts in the amount of $371.21 on June 14, 2010. On 

June 17, 2010, appellant wrote a second counterfeit check belonging to Antonio 

Perez in the amount of $189.14 to Pacific Truck Parts. The court awarded Pacific 

Truck Parts $560.35 in restitution based on the probation officer's representation in 

the sentencing memorandum that appellant "wrote numerous fraudulent checks 

under the name and account of Rene[] Nava for food and services in Monterey 

County. The following businesses were identified and are requesting 

reimbursement: [¶] Pacific [Truck] Parts: $560.35." We note the inconsistencies 

between the two reports, but as we have explained, since appellant did not object 

to the quoted portion of the sentencing report, we have to presume that it is 
2 

accurate. (People v. Evans, supra, 141 Cal.App.3d at p. 1021.) Furthermore, on 

appellate review, all intendments are in favor of the trial court's ruling. If there is 

any clear and sufficient finding on which the judgment may rest, it will be 

presumed in favor of the judgment and any inconsistencies will be disregarded. 

(Brewer v. Simpson (1060) 53 Cal.2d 567, 584.) 

 There is no change in the judgment. 

 The petition for rehearing is denied. 

 ___________________________ 

 ELIA, J. 

 ___________________________ 

RUSHING, P. J. 

 ___________________________ 

 PREMO, J. 
Filed 7/2/13 (unmodified version) 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

LUIS BANDILLA GOMEZ, 

Defendant and Appellant. 

 H037792 

 (Monterey County 

 Super. Ct. Nos. SS101687A, 

 SS102170A) 

 In this appeal, Luis Gomez (appellant) challenges certain victim restitution orders 

(Pen. Code, § 1202.4) that were imposed at a combined sentencing hearing after he 

entered into plea bargains in two different cases—SS101687A and SS102170A (hereafter 

101687A and 102170A).1

 For reasons that follow, we affirm the judgment. 

Facts and Proceedings Below 

 On August 26, 2010, in 101687A, the Monterey County District Attorney filed an 

18-count information in which appellant was charged with one count of second degree 

robbery (Pen Code, § 211, count one, victim Juan Arate); two counts of identity theft (§ 

530.5, subd. (a),2

 count two victim Rene Nava, count three victim Armando Nava); seven 

 

1

 A third case, MS287961 (hereafter MS287961), was sentenced at the same 

time, but no victim restitution was ordered. 

2

 All unspecified section references are to the Penal Code. 
4 

counts of commercial burglary (§ 459, counts four and 12 Sears, counts six and eight KMart, count 10 Rite-Aid, counts 14 and 16 Macy's); seven counts of false personation (§ 

529.3, counts five and 13 Sears, counts seven and nine K-Mart, count 11 Rite Aid and 

counts 15 and 17 Macy's) and one count of mail theft (§ 530.5, subd. (e), count 18, a 

misdemeanor). In the information it was alleged that all the counts occurred between 

April and June 2010, and that appellant had served two prior prison terms within the 

meaning of section 667.5, subdivision (b). 

 Subsequently, on February 18, 2011, in 102170A, the Monterey County District 

Attorney filed an information in which appellant was charged with three counts of 

commercial burglary (§ 459 count one Salinas Valley Ford, count three Pacific Truck 

Parts and count five Save Mart); and three counts of submitting fictitious business checks 

(§ 476, count two Salinas Valley Ford, count four Pacific Truck Parts, and count six Save 

Mart). Again, the information contained an allegation that appellant had served two prior 

prison terms. 

 On May 4, 2011, appellant entered into a plea bargain covering both felony cases. 

In 101687A, appellant agreed to plead no contest to all 18 counts and admit that he had 

served two prior prison terms. In 102170A, appellant agreed to plead no contest to the 

commercial burglary of Salinas Valley Ford. In exchange for his no contest pleas to both 

cases, appellant was promised a state prison term of five years in 101687A and a 

consecutive eight month term in 102170A, the court's promise to consider section 654 

issues, and the dismissal of the remaining counts and allegations in 102170A.3

 

 At a combined sentencing hearing held on July 8, 2011, the court sentenced 

appellant to the upper term of three years on the robbery count in 101687A and 

concurrent two year terms on the remaining 16 felony counts. The court stayed the 

 

3

 In 101687A, appellant's maximum possible sentence was 13 years and in 

102170A four years eight months. 
5 

sentences on the false personation counts pursuant to section 654. In addition, the court 

imposed two one-year terms for the two prison priors.4

 The court ordered that appellant 

pay various fines and fees and imposed a victim restitution order to be paid to eight 

different entities totaling $36,636.46. In 102170A, the court imposed an eight month 

prison term to be served consecutively to the term imposed in 101687A, and dismissed 

the remaining counts and allegations pursuant to the terms of the plea bargain.5

 The court 

ordered that appellant pay $872.03 in victim restitution to Salinas Valley Ford, $560.35 

to Pacific Auto Parts, $96.34 to Save Mart. The court awarded $529.14 to Bank of 

America, but did not specify in which case it was being awarded. 

 On September 6, 2011, and again on October 17, 2011, appellant filed notices of 

appeal covering both cases and in both instances sought certificates of probable cause. 

On January 10, 2012, the court granted a certificate of probable cause covering both 

cases. 

 As noted, on appeal, appellant challenges certain of the victim restitution awards. 

Alternatively, if this court deems his challenge to the victim restitution awards forfeited, 

he argues that he did not receive the effective assistance of counsel. In addition, 

appellant contends that the abstract of judgment should be corrected to reflect the 

 

4

 The court imposed a two year concurrent prison term on count 18 a 

violation of section 530.5, subdivision (e), which is and was charged as a 

misdemeanor requiring only a county jail sentence. However, the abstract of 

judgment does not reflect imposition of the prison term. Accordingly, given 

these circumstances we must conclude that Judge Duncan misspoke when he 

imposed a prison term. 

5

 In MS287961, in which appellant had been charged with resisting arrest (§ 

148) appellant was sentenced to time served. 
6 

restitution fund fine, parole revocation fine, and victim restitution award to Kohl's as 

orally announced by the court in 101687A. 

Discussion 

Victim Restitution 

 Appellant argues that more than $30,000 of victim restitution that the court 

ordered was unauthorized by governing law and/or unsupported by substantial evidence. 

Specifically, appellant contends that the "sentencing court awarded victim restitution for 

uncharged transactions and the dismissed counts in No. SS102170A totaling more than 

$30,000. These awards were unauthorized" because they were based on uncharged 

conduct or on dismissed counts for which no Harvey waiver6

 was entered, and were 

 

6

 In People v. Harvey (1979) 25 Cal.3d 754, pursuant to a plea agreement, 

the defendant pleaded guilty to two counts of robbery with the use of a firearm 

and a third count of robbery was dismissed. (Id. p. 757.) In sentencing the 

defendant to the upper term, the trial court relied upon the dismissed robbery 

count as an aggravating factor. Our high court held that this was error. The 

high court stated, "In our view, under the circumstances of this case, it would be 

improper and unfair to permit the sentencing court to consider any of the facts 

underlying the dismissed count three for purposes of aggravating or enhancing 

defendant's sentence. Count three was dismissed in consideration of 

defendant's agreement to plead guilty to counts one and two. Implicit in such a 

plea bargain, we think, is the understanding (in the absence of any contrary 

agreement) that defendant will suffer no adverse sentencing consequences by 

reason of the facts underlying, and solely pertaining to, the dismissed count." 

(Id. at p. 758, italics added.) It was from the parenthetical in the quoted text 

that the notion of a Harvey waiver developed. (People v. Goulart (1990) 224 

Cal.App.3d 71, 80.) "A defendant who signs the typical waiver form agrees to 
7 

inconsistent with the plea bargain. Further, no evidence supports the awards of victim 

restitution to Kohl's, G.E. Money Back Sony's Card, and Bank of America. Moreover, 

the award of $22,920.36 to six credit card companies was unauthorized because they 

were not "direct victims." Finally, he contends his right to due process of law was 

violated by the award of "tens of thousands of dollars to compensate for conduct not 

charged or convicted or admitted." Alternatively, trial counsel was prejudicially 

ineffective in failing to object to the unauthorized awards and failing to object to the 

awards that were not supported by substantial evidence. 

 Respondent counters that all the restitution claims are forfeited because appellant 

did not contest the factual accuracy of the restitution amounts stated in the probation 

report or sentencing memorandum. 

Governing Law 

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

economic loss as a result of the defendant's conduct. (§ 1202.4, subd. (f).) The 

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

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

(§ 1202.4, subd. (f)(3).) The restitution amount should be "based on the amount of loss 

claimed by the victim or victims or any other showing to the court." (§ 1202.4, subd. (f).) 

 

allow the sentencing judge to consider his entire criminal history, including any 

unfiled or dismissed charges." (Ibid.) Typically, Harvey waiver language reads 

something akin to the following: I agree that the sentencing judge may consider 

my entire criminal history, the entire factual background of this case, including 

any unfiled, dismissed, stricken charges or allegations, and all the underlying 

facts of this case when granting probation, ordering restitution, or imposing 

sentence. (See People v. Munoz (2007) 155 Cal.App.4th 160, 167; People v. 

Baumann (1985) 176 Cal.App.3d 67, 74, 75.) 
8 

To comport with basic due process, a defendant must be given notice and the opportunity 

to be heard. (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1547.) Consistent with this 

dictate, the victim restitution statutory scheme provides that the defendant has the right to 

a restitution hearing "to dispute the determination of the amount of restitution." (§ 

1202.4, subd. (f)(1).) The statute contemplates that the restitution amount will be 

determined at sentencing, unless the amount cannot be ascertained at that time. (§ 

1202.4, subd. (f); see People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319.)7

 The 

defendant's right to notice and a hearing is protected if the amount claimed by the victim 

is set forth in the probation report, and the defendant has an opportunity to challenge the 

figures in the probation report at the sentencing hearing. (People v. Cain (2000) 82 

Cal.App.4th 81, 86; see People v. Gonzalez (2003) 31 Cal.4th 745, 754-755.) 

 Generally, to preserve a restitution issue for appellate review, the defendant must 

raise the objection in the trial court. (People v. Gonzalez, supra, 31 Cal.4th at p. 755; 

People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395–1396; In re S.S. (1995) 37 

Cal.App.4th 543, 547–548.) However, our high court has "created a narrow exception to 

the [forfeiture] rule for ' "unauthorized sentences" or sentences entered in "excess of 

jurisdiction." ' [Citation.] Because these sentences 'could not lawfully be imposed under 

any circumstance in the particular case' [citation] they are reviewable 'regardless of 

whether an objection or argument was raised in the trial and/or reviewing court.' 

[Citation.]" (People v. Smith (2001) 24 Cal.4th 849, 852.) Our high court deemed 

"appellate intervention appropriate in these cases because the errors presented 'pure 

questions of law' [citation] and were ' "clear and correctable" independent of any factual 

issues presented by the record at sentencing.' [Citation.] In other words, obvious legal 

 

7

 Section 1202.4, subdivision (f) states in part, "If the amount of loss cannot 

be ascertained at the time of sentencing, the restitution order shall include a 

provision that the amount shall be determined at the direction of the court." 
9 

errors at sentencing that are correctable without referring to factual findings in the record 

or remanding for further findings are not [forfeited]." (Ibid.) 

 Respondent argues that because "the trial court's factual findings . . . are at the 

core of appellant's complaints – then the restitution issue is forfeited by appellant's failure 

to object below." Appellant counters that the issue on appeal is whether the various 

restitution awards run afoul of section 1202.4, which among other things, prohibits the 

sentencing court from awarding restitution except to victims of the " 'criminal conduct for 

which the defendant has been convicted.' " Since appellant is not actually quibbling with 

the amount of certain awards, but rather is arguing that the majority of the restitution 

awards could not have been made in any amount because they were precluded by the 

terms of the governing statute, we will address this issue. 

 At the outset we note that appellant's argument that the victim restitution order 

breached the plea agreement is not properly before us. When appellant executed his 

Waiver Of Rights Plea Of Guilty/No Contest form in both cases, appellant acknowledged 

that he had a right to withdraw his plea if the trial court withdrew its approval of the plea 

agreement. At sentencing when the trial court indicated it would order victim restitution 

and gave the amounts, appellant did not object that such restitution awards would violate 

the plea agreement and he did not move to withdraw his plea on that ground at that time. 

Having been advised of his right to withdraw his plea if the trial court did not impose the 

promised sentence, the trial court was not required to re-advise appellant of his options or 

specifically afford him the opportunity to withdraw his plea at sentencing on the amount 

of victim restitution. (People v. Murray (1995) 32 Cal.App.4th 1539, 1546.) 

Consequently, we conclude appellant has forfeited his appellate claim that some victim 

restitution awards violated the plea agreement. (People v. Villalobos (2012) 54 Cal.4th 

177, 182.) 

 In order to address appellant's remaining arguments it is necessary to set forth in 

detail the evidence adduced at the preliminary hearing in 101687A since the preliminary 
10 

hearing transcript was designated as the factual basis for the plea, and the factual 

background pertaining to how the trial court arrived at the victim restitution awards. 

 Officer Cruz Gonzales testified that on July 10, 2010, at approximately 8 p.m. he 

was at Northridge Mall in Salinas when he saw a confrontation in front of the doors to the 

J.C. Penney store. Officer Gonzales saw appellant come out of the door and "there was 

some pushing and shoving." Then, he watched as "a couple [of] people" took off 

running. The officer detained appellant. Later, the officer spoke to the store's security 

officer Michael Edington and was told that appellant attempted to leave the store with 

merchandise without paying for it. Edington said that he pursued appellant. As he did 

so, he saw appellant run toward another security officer, Juan Zarate, who ended up on 

the floor. Zarate shouted to Edington that appellant had pushed him. Edington testified 

that he "personally observed the push occur." 

 Postal Inspector Thang Bui testified that sometime in June 2010, a Salinas postal 

worker notified him of potential mail theft. Repeatedly, a man with a California's driver's 

license "bearing his photo and the name Rene Nava" had asked for mail for a Monroe 

Street address both at a Salinas post office and from an on-route mail carrier. The mail 

this person retrieved included letters from financial institutions; some letters appeared to 

contain credit cards. 

 Another man, who called himself Rene Nava and had identification to that effect, 

inquired at the Salinas post office as to why he had received notice that his mail was 

being forwarded to a Monroe Street address. Subsequently, Inspector Bui learned there 

had been fraudulent activity on this man's financial accounts. Armando Nava, Rene's 

brother "was having similar problems with identity theft." 

 Postal workers were able to copy the driver's license of the man who had 

represented that he was Rene Nava, as well as write down his telephone number, vehicle 

make and license plate number. Using this information, Inspector Bui was able to 

identify appellant as a suspect. After preparing a photographic lineup containing 
11 

appellant's photograph, Inspector Bui showed it to two postal workers; one identified 

appellant as the person who had come into the post office and asked for mail for a 

Monroe Street address, and the other identified appellant as the person who had 

approached him on his mail route and asked for mail for a Monroe Street address. 

 When Inspector Bui showed both Rene and Armando Nava a photograph of 

appellant, they both denied knowing him or authorizing appellant to conduct any 

financial transactions in their names. 

 As to counts four, five, 12 and 13, Inspector Bui testified that he determined that 

on May 11, 2010, Rene Nava's Citibank issued Sears credit card was reported stolen and 

a new card was sent to a residence on Alamo Way that belonged to appellant's girlfriend. 

This card was used to make $2667.55 in transactions at Sears on May 18, 25, and 26, 

2010. The transaction that occurred on May 18 was for an oil change and involved a 

vehicle and telephone number that Inspector Bui had previously linked to appellant. 

Inspector Bui reviewed surveillance camera footage for the May 18 and 25 transactions 

that showed a man who appeared to the inspector to be appellant. 

 As to counts six, seven, eight and nine, Inspector Bui investigated transactions that 

occurred at K-Mart on May 21 and 23, 2010. The first transaction was made using Rene 

Nava's Citibank issued Sears credit card and was for $325.63. The May 23 transaction 

was made using Rene Nava's HSBC issued Sears credit card and was for $407.31. 

Again, Inspector Bui reviewed surveillance camera footage for the K-Mart transactions; 

again they showed a man who appeared to the inspector to be appellant making the 

transactions. Packaging for an item purchased in the May 23 transaction was found 

during a search of the residence belonging to appellant's girlfriend. 

 As to counts 14, 15, 16 and 17, Inspector Bui investigated several transactions that 

occurred on May 28 and June 1, 2010 at Macy's. These transactions were made using 

Armando Nava's credit card and totaled $2508.34. Again surveillance camera footage 

showed a man who appeared to be appellant making these transaction. Similarly, 
12 

Inspector Bui investigated two transactions at a Rite Aid store that occurred on May 23, 

2010. These transactions were made using Rene Nava's GE Money Bank issued WalMart Discover card and totaled $506.54. Again, surveillance camera footage of one of 

the transactions showed someone who appeared to be appellant making the purchases. 

Items from Macy's were recovered from the residence of appellant's girlfriend. 

 When the trial court asked about specific evidence to support the identity theft 

counts, the prosecutor confirmed they were "just kind of a blanket allegation[s] in regard 

to the more specific allegations." 

 As to 102270A, no factual basis for the plea was specified. Accordingly, all we 

know is that appellant pleaded no contest to commercial burglary at Salinas Valley Ford. 

 No Harvey waiver was executed in either case. 

 Following appellant's pleas in both cases, the probation officer's report 

recommended that in 101687A appellant pay restitution "to Sears in the amount of 

$1008.91, to Kmart in the amount of $732.94, to Rite-Aid in the amount of $901.95 and 

to Macy's in the amount of $4,176.55 . . . ." In addition, in 102170A, the probation 

officer recommended that appellant pay $872.03 to Salinas Valley Ford. 

 It appears that thereafter, at the court's request, the probation officer filed a 

Sentencing Memorandum in which the probation officer stated the following: "The 

defendant used a Sears Citibank MasterCard belonging to Rene[] Nava, to make multiple 

purchases at Sears, Kmart and an on-line purchase. Sears Citibank MasterCard reported 

a total loss of $2,667.55. It is requested that restitution in the amount of $2,667.55 be 

collected in a manner determined by the California Department of Corrections and 

Rehabilitation. [¶] The defendant made purchases at Kmart in Salinas, California, using 

a Sears HSBC MasterCard belonging to Rene[] Nava, in the amount of $407.31. It is 

requested that restitution in the amount of $407.31 be collected in a manner determined 

by the California Department of Corrections and Rehabilitation. [¶] The defendant made 

purchases at Best Buy Electronics in Salinas, Marina and Gilroy using a Best Buy Credit 
13 

Card belonging to Rene[] Nava, in the amount of $4,345.19. It is requested that 

restitution in the amount of $4,345.19 be collected in a manner determined by the 

California Department of Corrections and Rehabilitation. [¶] The defendant made 

purchases at Macy's in Salinas, Monterey and San Jose, California, using a Macy's card 

belonging to Rene[] Nava, in the amount of $1,668.21. It is requested that restitution in 

the amount of $1,668.21 be collected in a manner determined by the California 

Department of Corrections and Rehabilitation. [¶] The defendant made purchases at 

Macy's in Salinas and Monterey, California using a Macy's card belonging to Armando 

Nava, in the amount of $2,508.34. It is requested that restitution in the amount of 

$2,508.34 be collected in a manner determined by the California Department of 

Corrections and Rehabilitation. [¶] The defendant made purchases at JCPenney's in 

Salinas, California using a JCPenney's card belonging to Rene[] Nava, in the amount of 

$3,151.92. It is requested that restitution in the amount of $3,151.92 be collected in a 

manner determined by the California Department of Corrections and Rehabilitation. [¶] 

The defendant used a Wal-Mart Discover card belonging to Rene[] Nava to make 

multiple purchases at Home Depot, Macy's, Rite-Aid and other miscellaneous purchases, 

including at a hair salon. Wal-Mart Discover Card reported a loss of $4,467.44 for these 

accounts. It is requested that restitution in the amount of $4,467.44 be collected in a 

manner determined by the California Department of Corrections and Rehabilitation. [¶] 

The defendant used a Wal-Mart Discover Card belonging to Armando Nava to make 

multiple purchases at Wal-Mart. Wal-Mart Discover Card reported a loss of $2,606.29 

for these accounts. It is requested that restitution in the amount of $2,606.29 be collected 

in a manner determined by the California Department of Corrections and Rehabilitation. 

[¶] The defendant used a Bank of America MasterCard belonging to Rene[] Nava to 

make multiple purchases at Best Buy, Takken Shoes, Macy's and other miscellaneous 

purchases, including at a hair salon. Bank of America MasterCard reported a loss of 

$7,774.05 for these accounts. It is requested that restitution in the amount of $7,774.05 
14 

be collected in a manner determined by the California Department of Corrections and 

Rehabilitation. [¶] The defendant made purchases at Kohl's Department Store using a 

Kohl's credit card issued to Rene[] Nava in the amount of $2,143.44. It is requested that 

restitution in the amount of $2,143.44 be collected in a manner determined by the 

California Department of Corrections and Rehabilitation. [¶] The defendant made 

purchases at Sony's Electronic Store in Gilroy, California using a GE Money Bank Sony 

Credit Card issued to Rene[] Nava in the amount of $4,997.72. It is requested that 

restitution in the amount of $4,997.72 be collected in a manner determined by the 

California Department of Corrections and Rehabilitation. [¶] The defendant also wrote 

numerous fraudulent checks under the name and account of Rene[] Nava for food and 

services received in Monterey County. The following businesses were identified and are 

requesting reimbursement: 

 Pacific Auto Parts: $560.35 

 Salinas Valley Ford $872.03 

 Save Mart $96.34 

 Bank of America is also requesting restitution in the amount of $529.14 for checks 

that were paid to CVS, Grocery Outlet and Foodsco on Bank of America belonging to 

Rene[] Nava."8

 

 Based on the forgoing claims, as noted ante, the court imposed restitution orders 

for both cases. 

 Appellant argues that the sentencing court awarded victim restitution for 

uncharged transactions and the dismissed counts in 102170A totaling more than $30,000. 

Appellant contends that these amounts were unauthorized because the sentencing court 

had authority to award victim restitution only for the crimes of conviction. Further, there 

 

8

 Appellant did not object to this portion of the sentencing report, we 

presume it is accurate. (People v. Evans (1983) 141 Cal.App.3d 1019, 1021.) 
15 

were no Harvey waivers altering this default rule and the " 'transactionally related' " 

exception to Harvey does not apply. Appellant is missing the point. 

 Case law indicates that losses for purposes of victim restitution are not limited to 

those enumerated in section 1202.4 and must be construed broadly and liberally to 

compensate a victim for any economic loss which is proved to be the direct result of the 

defendant's criminal behavior. (People v. Moore (2009) 177 Cal.App.4th 1229, 1232; 

People v. Crisler (2008) 165 Cal.App.4th 1503, 1508.) 

 For a defendant sentenced to prison, "[c]ourts have interpreted section 1202.4 as 

limiting restitution awards to those losses arising out of the criminal activity that formed 

the basis of the conviction." (People v. Woods (2008) 161 Cal.App.4th 1045, 1049 

(Woods); see also People v. Lai (2006) 138 Cal.App.4th 1227, 1247 [construing "criminal 

conduct" language in section 1202.4, subdivision (f)].) 

 As noted, in Harvey, supra, 25 Cal.3d at page 758, the court held that "[i]mplicit 

in . . . a plea bargain . . . is the understanding . . . that defendant will suffer no adverse 

sentencing consequences by reason of the facts underlying, and solely pertaining to," 

dismissed counts, and therefore "it would be improper and unfair to permit the sentencing 

court to consider any of the facts underlying . . . dismissed count[s] . . . for purposes of 

aggravating or enhancing defendant's sentence." To avoid the Harvey restriction, 

prosecutors often "condition[ ] their plea bargains upon the defendant agreeing that the 

sentencing court may consider the facts underlying the not-proved or dismissed counts 

when sentencing on the remainder." (People v. Myers (1984) 157 Cal.App.3d 1162, 

1167.) Defendants may accept this relatively minor potential consequence in order to 

avoid other convictions or sentencing enhancement terms. (Ibid.) "A Harvey waiver 

permits the sentencing court to consider the facts underlying dismissed counts and 

enhancements when determining the appropriate disposition for the offense or offenses of 

which the defendant stands convicted. [Citation.]" (People v. Munoz, supra, 155 

Cal.App.4th at p. 167.) 
16 

 Nevertheless, in this case although there was no Harvey waiver as to the dismissed 

counts, and certain transactions were not specifically charged as counts, all the restitution 

amounts appellant was ordered to pay arose out of the criminal activity that formed the 

basis of his convictions for identity theft. As this court has explained before, "section 

1202.4, subdivision (f)(3) provides that '[t]o the extent possible, the restitution order . . . 

shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for 

every determined economic loss incurred as the result of the defendant's criminal 

conduct.' (Italics added.) Interpreting the requirement that the damages result from the 

defendant's criminal conduct, the court in People v. Jones (2010) 187 Cal.App.4th 418, 

424–427 . . . (Jones) held that tort principles of causation apply to victim restitution 

claims in criminal cases. The court observed that there 'are two aspects of causation . . . : 

cause in fact (also called direct or actual causation), and proximate cause.' [Citation.] 

The [Jones] court explained that ' "[a]n act is a cause in fact if it is a necessary antecedent 

of an event" ' and that ' "proximate cause 'is ordinarily concerned, not with the fact of 

causation, but with the various considerations of policy that limit an actor's responsibility 

for the consequences of his conduct.' " ' [Citation.]" (People v. Holmberg, supra, 195 

Cal.App.4th at pp. 1320-1321.) " 'The "but for" rule has traditionally been applied to 

determine cause in fact. [¶] The Restatement formula uses the term substantial factor

"to denote the fact that the defendant's conduct has such an effect in producing the harm 

as to lead reasonable men to regard it as a cause." ' [Citation.]" (Id. at p. 1321.) 

 The only limitation the Legislature placed on victim restitution is that the loss 

must be an "economic loss incurred as the result of the defendant's criminal conduct." 

(People v. Moore, supra, 177 Cal.App.4th at p. 1232.) In other words, a defendant's 

criminal conduct must be a "but for" cause of the losses. Appellant admitted that he 

committed identity theft of both Rene and Armando Nava. In order to commit the crime 

of identity theft, appellant had to obtain and use their personal data "to obtain, or attempt 

to obtain, credit, goods, services, or medical information in the name of the other person 
17 

without the consent of that person." (§ 530.5(a).) Having admitted that he did just that 

appellant cannot now complain that transactions in which he obtained credit and goods, 

whether or not charged as individual counts and whether or not dismissed as part of the 

plea bargain, should go uncompensated. Simply put, appellant's criminal conduct in 

taking the personal data of Rene and Armando Nava and using it to obtain credit and 

goods was a "but for" cause of the economic losses to the credit card companies and 

businesses for which appellant is required to pay. 

 Finally, as to appellant's claim that counsel was ineffective in failing to object to 

the restitution awards, since the restitution awards were authorized by the facts of this 

case we reject appellant's claim that he was denied the effective assistance of counsel. 

(People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [a conviction will not be reversed 

based on a claim of ineffective assistance of counsel unless the defendant establishes that 

(1) counsel's representation fell below an objective standard of reasonableness; and 

(2) there is a reasonable probability that, but for counsel's unprofessional errors, a 

determination more favorable to defendant would have resulted. If the defendant makes 

an insufficient showing on either one of these components, the ineffective assistance 

claim fails].) 

Sufficiency of the Evidence 

 Appellant argues that no evidence supports the awards of victim restitution to 

Kohl's, G.E. Money Bank Sony's Card and Bank of America. Appellant contends that the 

wholly unsubstantiated assertions in the sentencing memorandum are insufficient to 

support an award of victim restitution to Kohl's, G.E. Money Bank Sony's Card and Bank 

of America. In essence, appellant is not challenging the amount of the award. Rather, 
18 

appellant is contending that there was no evidence that it was his criminal conduct that 

caused the losses in the first place.9

 

 There is no question that the only evidence that Kohl's, G.E. Money Bank Sony's 

Card and Bank of America lost money was the statement in the probation officer's 

sentencing memorandum to that effect. 

 "In reviewing the sufficiency of the evidence [to support a restitution award], the 

' "power of the appellate court begins and ends with a determination as to whether there is 

any substantial evidence, contradicted or uncontradicted," to support the trial court's 

findings.' [Citations.] Further, the standard of proof at a restitution hearing is by a 

preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.] 'If the 

circumstances reasonably justify the [trial court's] findings,' the judgment may not be 

overturned when the circumstances might also reasonably support a contrary finding. 

[Citation.] We do not reweigh or reinterpret the evidence; rather, we determine whether 

there is sufficient evidence to support the inference drawn by the trier of fact. 

[Citations.]" (People v. Baker (2005) 126 Cal.App.4th 463, 468–469.) 

 "At the core of the victim restitution statutory scheme is the mandate that a victim 

who suffers economic loss is entitled to restitution and that the restitution is to be 'based 

on the amount of loss claimed by the victim.' Thus, a victim seeking restitution (or 

someone on his or her behalf) initiates the process by identifying the type of loss . . . he 

or she has sustained and its monetary value." (People v. Fulton (2003) 109 Cal.App.4th 

876, 885-886.) 

 

9

 Although he failed to object in the trial court, appellant asserts his argument 

is cognizable on appeal because, as framed, his argument is one of sufficiency 

of the evidence, which is not subject to forfeiture. Even if we were to disagree 

with appellant on this point we would address this issue as appellant has raised 

a claim of ineffective assistance of counsel. 
19 

 Over the last decade or more there has been some disagreement among appellate 

courts as what may be considered in determining if the victim has made the required 

prima facie case of loss. The weight of authority sanctions the trial court's reliance on the 

information in the probation report to establish the victim's prima facie showing of 

economic losses. (People v. Collins (2003) 111 Cal.App.4th 726, 734 [when the 

probation report includes a discussion of the victim's loss and a recommendation on the 

amount of restitution, the defendant must come forward with contrary information to 

challenge that amount]; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406–1407 

[absent a challenge by defendant, an award of the amount specified in the probation 

report is not an abuse of discretion when the report includes discussion of the victim's 

loss and a recommendation on the amount of restitution, the defendant must come 

forward with contrary information to challenge that amount]; In re S.S. (1995) 37 

Cal.App.4th 543, 545 [in determining the amount of restitution the court can rely on 

itemization of losses in the probation report, though the probation officer failed to verify 

the information and no declaration was filed]; People v. Foster (1993) 14 Cal.App.4th 

939, 947, superseded on other grounds as stated in People v. Sexton (1995) 33 

Cal.App.4th 64, 70–71 [when the probation report includes information on the amount of 

the victim's loss and a recommendation as to the amount of restitution, the defendant 

must come forward with contrary information to challenge that amount]; People v. 

Hartley (1984) 163 Cal.App.3d 126, 130, fn. 3 [since a defendant will learn of the 

amount of restitution recommended when he reviews the probation report prior to 

sentencing, the defendant bears the burden at the hearing of proving that amount exceeds 

the replacement or repair cost]; People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-

1545 [victim made prima facie showing for restitution where probation officer's report 

and handwritten statement from victim listing economic losses was detailed and facially 

credible in explaining the costs of materials and labor for repair]; People v. Keichler

(2005) 129 Cal.App.4th 1039, 1048 [the trial court is entitled to consider the probation 
20 

report as well as factual evidence as to cost in the form of expert testimony at hearing; 

absent a challenge by the defendant, an award of the amount specified in the probation 

report is not an abuse of discretion]; see also People v. Hove (1999) 76 Cal.App.4th 1266, 

1275.) 

 On the other hand, some appellate courts, including this one, have required fairly 

rigorous presentation of evidence and do not find the bare probation report sufficient. 

(People v. Harvest (2000) 84 Cal.App.4th 641, 653 [probation officer's report may satisfy 

notice requirements for due process, but it cannot take the place of evidence where 

unsupported by documentation or testimony]; In re K.F. (2009) 173 Cal.App.4th 655, 

665 [we reject any suggestion that a burden of refutation may be imposed on the 

defendant merely by asserting that a stated amount is sought as restitution]; People v. 

Vournazos (1988) 198 Cal.App.3d 948, 958–959 [restitution based solely on 

recommendation of probation officer based on his conversation with the victim 

insufficient to establish a prima facie claim].) 

 Virtually all of the appellate decisions permitting a probation report to be 

considered in establishing the victim's prima facie case for the losses suffered involved 

probation reports containing more than the bald statement of the victim. Some involved a 

detailed breakdown of how the losses were calculated (see, e.g., People v. Gemelli, supra,

161 Cal.App.4th at p. 1544), some involved a recommendation by the probation officer 

of the losses (see e.g., People v. Pinedo, supra, 60 Cal.App.4th at pp. 1406–1407; People 

v. Hove, supra, 76 Cal.App.4th at p. 1275), and some involved the presentation of 

additional factual evidence beyond that contained in the probation report (see, e.g., 

People v. Collins, supra, 111 Cal.App.4th at p. 734). 

 Nevertheless, the purpose of the restitution statute is to assist those victimized by 

crime. This policy goal is sufficiently important to be enshrined in the state Constitution, 

which 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 
21 

restitution from the persons convicted of the crimes for losses they suffer." (Cal. Const., 

art. I, § 28, subd. (b).) Section 1202.4, subdivision (f) requires "full restitution." 

 Moreover, section 1202.4, subdivision (f) states that the amount of loss is to be 

"based on the amount of loss claimed by the victim or victims or any other showing to the 

court." (§ 1202.4, subd. (f), italics added.) Use of the word "claimed" by the Legislature 

would be an unusual way of requiring the victim to prove losses, if proving the claim was 

intended. This wording indicates that something less than proof is required to establish 

the victim's economic losses and shift the burden to the defendant to challenge the 

amount of losses sought. 

 As this court has explained before, " ' "[w]hen the probation report includes 

information on the amount of the victim's loss and a recommendation as to the amount of 

restitution, the defendant must come forward with contrary information to challenge that 

amount." ' [Citations.]" (People v. Holmberg, supra, 195 Cal.App.4th at p. 1320.) Here, 

the victims' evidence of loss was fully contained in the probation officer's sentencing 

memorandum and was sufficient evidence of that loss. Since appellant did not present 

evidence sufficient to rebut this prima facie showing, "an award of the amount specified 

in the probation report is not an abuse of discretion. [Citation.]" (People v. Keichler, 

supra, 129 Cal.App.4th at p. 1048.) 

 Having determined that there was sufficient evidence of the losses sustained by 

Kohl's, G.E. Money Bank Sony's Card and Bank of America, we reject appellant's claim 

that he was denied the effective assistance of counsel. (People v. Rodrigues, supra, 8 

Cal.4th at p. 1126.) 

Direct Victims 

Appellant argues that the award of victim restitution to six credit card companies 

was unauthorized because they were not direct victims of the crimes of conviction. 

Instead, he asserts that they were at least one degree removed from the direct victims, 
22 

namely the two natural persons and four merchants named in the information in 

101687A. 

 Appellant contends that insofar as credit card companies incur economic costs by 

assuming losses cardholders or merchants would otherwise bear for unauthorized 

transactions, they are comparable to insurers or other indemnifying agencies. 

 The term "victim" in section 1202.4, subdivision (k)(2) is specifically defined and 

encompasses " '[a]ny corporation, business trust, estate, trust, partnership, association, 

joint venture, government, governmental subdivision, agency, or instrumentality, or any 

other legal or commercial entity when that entity is a direct victim of a crime.' " (People 

v. Anderson (2010) 50 Cal.4th 19, 28.) Thus, section 1202.4, subdivision (k) permits 

restitution to a business or governmental entity only when it is a direct victim of crime. 

(Ibid.) 

 Accordingly, to be entitled to restitution, the credit card companies "must have (1) 

suffered an economic loss, and (2) be considered a 'direct victim' under the statute." 

(People v. Saint–Amans (2005) 131 Cal.App.4th 1076, 1082 (Saint–Amans).) 

 In People v. Birkett (1999) 21 Cal.4th 226 (Birkett), our Supreme Court concluded 

entitlement to restitution arises only in favor of " 'direct' [crime] victim[s]' . . . and 

insurers [do] not become such 'direct victim[s]' by reimbursing crime losses under the 

terms of their policies." (Id. at p. 229.)10 

 

10 People v. Birkett addressed restitution in the context of a probationer under 

former section 1203.4. This case involves a non-probationary term which is 

governed by section 1202.4. However, with regard to this issue, we do not 

believe this difference is determinative. "Although the California Supreme 

Court decided Birkett under former section 1203.04, a predecessor to section 

1202.4, the Court stated that the several changes to the statute between 1994 

and 1998 'do not significantly alter our analysis.' [Citation.] This is because 
23 

 In construing the term "direct victim," our Supreme Court "has defined 'direct' as: 

' "straightforward, uninterrupted, [or] immediate" in time, order or succession, or 

"proceeding [in logic] from antecedent to consequent, from cause to effect, etc., 

uninterrupted," or generally "[e]ffected or existing without intermediation or intervening 

agency; immediate." [Citation.]' " (People v. Slattery (2008) 167 Cal.App.4th 1091, 

1095–1096 (Slattery).) The Slattery court rejected the People's argument that the term 

"victim restitution" in section 1202.4, subdivision (f), must be construed to include "all 

persons who suffer losses as a result of criminal activity." (Cal. Const., art. I, § 28, subd. 

(b)). Because section 1202.4, subdivisions (f) and (k), limited "victim restitution" to 

direct victims of crime, the court held that a hospital which treated a victim of elder 

 

the statutory language limiting the right to restitution to 'direct victim' business 

or governmental entities remained substantively similar throughout the 

legislative changes. [Citation.] [¶] Neither do the amendments to 1202.4 since 

1998 alter the analysis in Birkett. In 1999, the Legislature added subdivision 

(k)(2) in its current form, which expressly provides that the definition of 'victim' 

shall include business and government entities 'when that entity is a direct 

victim of the crime.' (Stats.1999, ch. 584, § 4.) The post–1999 amendments do 

not alter or affect subdivision (k)(2) or the 'direct victim' language. (Stats. 

2000, ch. 1016, § 9; Stats. 2004, ch. 223, § 2; Stats. 2005, ch. 240, § 10.5; 

Stats. 2007, ch. 302, § 14.)" (People v. Slattery, supra,167 Cal.App.4th at p. 

1096, fn. 2.) In the years following Birkett, some courts have held an insurance 

company may be entitled to restitution when it is the direct victim of a crime. 

(See, e.g., People v. O'Casey (2001) 88 Cal.App.4th 967; People v. Moloy

(2000) 84 Cal.App.4th 257.) 
24 

abuse could not claim victim restitution for the unpaid costs of treatment, and must 

instead recoup its debt by a civil action. (Slattery, supra, 167 Cal.App.4th at p. 1097.) 

 By contrast, a bank that held an account from which a defendant fraudulently 

withdrew funds was a direct victim of defendant's commercial burglary because the bank 

"was the object of the crime." (Saint–Amans, supra, 131 Cal.App.4th at p. 1084.) This 

was so because "[defendant] committed his offense by entering the bank's premises at 

three different branches," then "deceiv[ed] the bank's employees[,] and used [its] bank 

account system"; thus, the bank was the entity against which defendant committed the 

crime. (Saint–Amans, supra, 131 Cal.App.4th at pp. 1086–1087.) Similarly, People v. 

Bartell (2009) 170 Cal.App.4th 1258, 1262, held that a bank that covered forged checks 

was a direct victim of the forgery and hence entitled to restitution. 

 Just last year our Supreme Court noted that "case law has ascribed a precise 

meaning to the phrase 'direct victim,' as that phrase has appeared in several restitution 

statutes. Thus, it is established that a statute 'permitting restitution to entities that are 

"direct" victims of crime [limits] restitution to "entities against which the [defendant's] 

crimes had been committed"—that is, entities that are the "immediate objects of the 

[defendant's] offenses." [Citation.]' [Citations.]" (People v. Runyan (2012) 54 Cal.4th 

849, 856.) 

 Here, the credit card companies were the object of appellant's crimes of identity 

theft, because, as appellant concedes, they are the entities that in general suffer a loss for 

unauthorized transactions. (F.T.C. v. J.K. Publications, Inc. (C.D. Cal. 2000) 99 

F.Supp.2d 1176, 1184, fn. 19 [when a card holder complains of unauthorized charges, the 

card holder can receive a reimbursement by chargeback or credit. If the issuing bank 

accepts the complaint from a customer who disputes a charge on his or her account 

statement, it will reverse or charge back the transaction through the credit or debit card 

interchange. The chargeback causes a debit to be placed on the merchant's account at its 

bank and a credit on the customer's account at the issuing bank. A fee against the 
25 

merchant account is ordinarily assessed for each chargeback. Alternatively, a credit can 

be given to the card holder by the merchant directly (whereby the merchant agrees to 

reimburse the card issuer), or it can be given by the card issuer (where the issuing bank 

absorbs the cost of the unauthorized charge)].) 

 Appellant applied to the credit card companies under the name of Rene Nava and 

Armando Nava in order to obtain credit cards in their names. Having done so he 

obtained goods and services for which he had no intention of paying. While Rene and 

Armando Nava were victims of the identity theft counts in the sense that it was their 

personal information that was obtained by appellant, appellant used their information to 

obtain credit cards he had no right to obtain. He was, in essence, defrauding the credit 

card companies. 

 We do not read the Supreme Court's construction of the victim restitution statutes 

as requiring that a victim be the "object" of the crime in the sense that the defendant's 

criminal conduct was specifically directed to that individual or entity. In addition to 

describing the "victim" as being one who is the object of a crime (Birkett, supra, 21 

Cal.4th at p. 233; People v. Crow (1993) 6 Cal.4th 952, 957), the court has also stated 

that victims entitled to restitution are those who are "the real, actual, immediate, and 

direct victims of crime. . . ." (Birkett, supra, at p. 243.) In Birkett, the court defined 

"actual" as " '[e]xisting in . . . fact; . . . real, . . .' [citation]" (id. at p. 233, fn. 5); and 

"direct" as " 'straightforward, uninterrupted, [or] immediate' in time, order or succession, 

or 'proceeding [in logic] from antecedent to consequent, from cause to effect, etc., 

uninterrupted,' or generally '[e]ffected or existing without intermediation or intervening 

agency; immediate.' [Citation.]" (Id. at p. 233, fn. 6.) In light of these definitions, the 

credit card companies were unquestionably actual and direct victims of appellant's 

criminal conduct. They were undoubtedly "real" entities that suffered as a result of 

appellant's actions; losses were a "straightforward, uninterrupted, [or] immediate" 

consequence of appellant's criminal conduct. 
26 

 Accordingly, we conclude that since appellant admitted two counts of identity 

theft whereby he obtained credit cards that he used to obtain goods and services, the 

credit card companies were the direct victims of his crimes and therefore entitled to 

victim restitution. 

 That being said, we reject appellant's claim that his counsel was ineffective in 

failing to object to the award of restitution to the six credit card companies. (People v. 

Rodrigues, supra, 8 Cal.4th at p. 1126.) 

Assignment of Civil Liability in Excess of Jurisdiction 

 Appellant argues that the awards of victim restitution for conduct for which he 

was not convicted nor admitted amounted to an assignment of civil liability in excess of 

the sentencing court's jurisdiction and violated his due process rights. As we have 

explained ante, the sentencing court did not act in excess of its jurisdiction in awarding 

restitution to all the victims in this case, because all the awards were compensation for 

economic losses that were the result of the appellant's criminal conduct in stealing the 

Navas' identities. (§ 1202.4, subd. (f).) As to his argument that his due process rights 

were violated, this claim with regard to victim restitution was not preserved by objection 

below. (Cf. People v. Foster (2010) 50 Cal.4th 1301, 1321–1322 [failure to object at trial 

to stun belt restraint forfeited constitutional challenges]; People v. Catlin (2001) 26 

Cal.4th 81 [failure to object at trial to evidence admitted at penalty phase forfeited claim 

that admission violated due process].) 

 If not adequately preserved, appellant counters that trial counsel was ineffective in 

failing to object. Appellant argues there was no conceivable tactical benefit flowing from 

this failure. 

 To successfully assert a claim of ineffective assistance of counsel, a defendant 

must demonstrate that (1) counsel's representation fell below an objective standard of 

reasonableness, and (2) but for counsel's errors there is a reasonable probability that the 
27 

result of the proceeding would have been different. (Strickland v. Washington (1984) 

466 U.S. 668, 688, 694 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215–218.) 

 As Strickland advises, "a court need not determine whether counsel's performance 

was deficient before examining the prejudice suffered by the defendant as a result of the 

alleged deficiencies." (Strickland, supra, 466 U.S. at p. 697.) 

 We conclude that there was no ineffective assistance of counsel here because for 

all the reasons outlined ante there is no reasonable probability that the result would have 

been more favorable to defendant had his counsel objected. 

Restitution Fund Fine, Parole Revocation Fine, and Victim Restitution to Kohl's

 In sentencing appellant in 101687A, the court imposed a restitution fund fine in 

the amount of $1000 (§ 1202.4, subd. (A)(b)(1)), and a parole revocation fine in the same 

amount (§ 1202.45). In addition, the court ordered that appellant pay $2042.44 in victim 

restitution to Kohl's. However, both the clerk's minute order from the sentencing hearing 

and the abstract of judgment reflect a restitution fund fine and parole revocation fine of 

$3600. As to the award to Kohl's, the clerk's minute order reflects that the amount is 

$2143.44.11 Appellant requests that we order the abstract of judgment and the minute 

order corrected to reflect the amounts as orally imposed by the court. Respondent does 

not object. 

 Where a minute order or abstract of judgment differs from the court's oral 

pronouncements, the minute order does not control. Any discrepancy is deemed to be the 

result of clerical error. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Walz

(2008) 160 Cal.App.4th 1364, 1367, fn. 3; People v. Price (2004) 120 Cal.App.4th 224, 

 

11 The abstract of judgment does not specifically list the restitution amounts to 

the different entities, but references the probation officer's report for the names 

of the victims. In turn the probation officer's report lists the award to Kohl's as 

$2,143.44. 
28 

242.) "[T]he clerk's minutes must accurately reflect what occurred at the hearing." 

(People v. Zachary (2007) 147 Cal.App.4th 380, 388.) "The clerk cannot supplement the 

judgment the court actually pronounced by adding a provision to the minute order and the 

abstract of judgment. [Citation.]" (Id. at pp. 387–388.) Errors in the abstract of 

judgment may be corrected by this court on appeal. (People v. Mitchell, supra, 26 

Cal.4th at p. 185; People v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1.) Accordingly, 

we will order that the abstract of judgment be corrected to reflect a restitution fund fine of 

$1000 and a parole revocation fine in the same amount. (§ 1202.45 [parole revocation 

fine must be assessed in the same amount as that imposed pursuant to subdivision (b) of 

section 1202.4].) Additionally, the clerk's minute order from the sentencing hearing must 

be corrected to show the victim restitution award to Kohl's as $2,042.44. 

Disposition 

 The judgment is affirmed. However, the clerk of the court is directed to modify 

the abstract of judgment and the clerk's minute order from the sentencing hearing held on 

July 8, 2011, to reflect a restitution fund fine of $1000 and parole revocation fine in the 

same amount. With respect to the restitution award to Kohl's, the clerk of the court is 

directed to amend the minute order from the sentencing hearing and to amend the abstract 

of judgment to specifically reflect an award to Kohl's in the amount of $2,042.44. The 

clerk of the court is directed to forward a copy of the amended abstract of judgment to the 

Department of Corrections and Rehabilitation. 

 ______________________________ 

 ELIA, J. 

 WE CONCUR: 
29 

 _____________________________ 

 RUSHING, P. J. 

 _____________________________ 

 PREMO, J.