Tucker

In this action we consider whether, pursuant to Penal Code former section 1203.04, a criminal defendant may be ordered to pay as restitution to the victim the appreciated value of assets he embezzled from a trust account. We conclude such an order is authorized by law.

Facts and Procedural History

Defendant Philip Charles Tucker was a licensed investment broker and stepfather of the victim, Damon Keith Henry. Henry has had cerebral palsy since birth and received a large financial settlement regarding his disability.

In 1988 defendant opened a trust account for Henry with SIFE Investment Fund, a mutual fund. He deposited $8,000 into the account. In January of 1989 defendant made two withdrawals totaling $7,340 from the trust account. The first withdrawal of $2,400 was made on January 4; the second withdrawal of $4,940 was made on January 31. Henry and his mother did not learn of the withdrawals until January of 1993.

On February 3, 1994, defendant pled no contest to one count of embezzlement by a trustee (§ 506) and two counts of forgery (§ 470). At the restitution hearing, the vice-president of SIFE Trust Funds testified concerning the value of the January 1989…