Procedural Posture

Defendant challenged the judgment of the Superior Court of Santa Clara County (California), which convicted him of one count of grand theft and ordered as a condition of probation that he pay restitution on a charge of which he was acquitted.

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Defendant was charged with two counts of grand theft arising out of the sale of mining claims and quitclaim deeds. Defendant was convicted of one count, and the trial court sentenced and placed him on probation, a condition of which was to pay restitution on the charge of which he was not convicted. Defendant appealed the conviction and the validity of the restitution order. As to the conviction, the court held that because defendant failed to request a limiting instruction on the admission of an out-of-court statement for the purpose of demonstrating defendant’s adoption of the statement, he could not complain of its absence. The court reversed the restitution order and remanded for reasonable conditions of probation. The court held that restitution could not be imposed for the acquitted charge when there was no showing that the payment of restitution would in some way rehabilitate defendant for his proven criminal behavior. Restitution was not a substitute for a civil action to recover damages.


The court reversed and remanded that portion of the judgment that ordered defendant to pay restitution on a charge of which he was acquitted. The court held that to order restitution as a condition of probation, the trial court must have had a showing that the restitution would have rehabilitated defendant for his proven criminal behavior.