I agree with the majority insofar as they reiterate the following well-established principles:
Trial courts have broad discretion in creating conditions to probation.
The bounds of this discretion are set forth in section 1203.1 of the Penal Code which provides that a court may impose “reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from such breach and generally and specifically for the reformation and rehabilitation of the probationer ....”
Accordingly, the scope of appellate review of a probation condition is limited to determining whether it serves a purpose specified in section 1203.1.
*625Probation may be conditioned upon restitution of the damages caused by the crime of which the defendant has been convicted because such condition repairs the “injuiy . . . resulting from such breach.” However, the proper scope of restitution is not limited to such damages. Probation may also be conditioned, e.g.,- upon restitution of sums involved in charges of which the defendant has been acquitted, provided that the “reformation and rehabilitation of the probationer” is thereby served.
I disagree with the majority insofar as they pay mere lip service to these principles while emasculating the trial court’s discretion by holding that “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 the defendant was convicted,” restitution will serve no rehabilitative purpose. (Ante, p. 622.)
The sole authority for this novel proposition is a student note in a law review. (Note, Use of Restitution in the Criminal Process: People v. Miller (1969) 16 U.C.L.A.L.Rev. 456, 465.)1 The irony in the majority’s adoption of the proposition is that the author advanced it, not as an interpretation of section 1203.1, nor as a restatement of the case law, but as an alternative to both.
The student author was of the opinion that the Legislature in enacting section 1203.1 intended to limit restitution to the damages caused by the crime of which the defendant has been convicted, i.e., “the debts proximately caused by the criminal act.” (16 U.C.L.A.L.Rev. at pp. 461-462, 464.) The statute, as he interpreted it, is too restrictive. “[I]t is submitted that such an approach does not allow for restitution in many cases where it would further the rehabilitation and reformation of the offender.” (Id., at p. 464.) The cases interpreting the section, he recognized, have not restricted restitution to debts proximately caused by the criminal act. (Id., at p. 463.) However, the courts, in his opinion, have fallen into the opposite error. “As a rule of law, rehabilitation may mean all things to all courts.” (Id., at p. 462.) “What is needed,” he contended, “is a standard more specific than merely the ‘rehabilitation’ of the *626probationer and yet more flexible than that of ‘proximate cause.’ ” (Id., at p. 465.) Unlike the student author, the majority fails to distinguish between what the law is and what it, arguably, ought to be. His proposal—to limit restitutionary orders to acts committed with the same state of mind as the offense of which the defendant was convicted—finds favor with them. Therefore, through the magic of judicial legislation, it becomes law.
The novelty of this propositipn is demonstrated by the majority’s failure to articulate it in People v. Lent (1975) 15 Cal.3d 481 [124 Cal.Rptr. 905, 541 P.2d 545], although Lent was argued the same day as this case and presented the same question—whether probation may be conditioned upon restitution of sums involved in charges of which the defendant has been acquitted. “Ordinarily,” the majority held, “such result would preclude inclusion of that item in the restitution order.” (15 Cal.3d at p. 487.) However, Lent was an exception to the rule, the majority concluded, because “additional circumstances were developed in the unusually prolonged probation hearing conducted by the meticulous trial judge.” (Id) Apparently the majority had not yet read the student note because they give no indication that at the conclusion of the unusually prolonged hearing the trial judge found, or was required to find, that the theft of which Lent was acquitted was committed with the “same state of mind” as the theft of which he was convicted.2
Even more significant than the majority’s failure in Lent to state and adopt the student author’s proposal is their repeated citation with *627approval of People v. Miller (1967) 256 Cal.App.2d 348 [64 Cal.Rptr, 20], the subject of his case note and his harshest criticism.
The probationer in Miller operated a general contracting company which was declared bankrupt prior to the institution of the criminal proceedings. He was convicted of defrauding a couple named Keefe of $821 by accepting an advance payment for work he failed to perform. Although it limited the restitutionary condition of probation to the loss suffered by the Keefes, the court expressed hope that Miller would eventually reimburse the other creditors injured by his business operations. Eight months after the original grant of probation, the probation officer submitted memoranda informing the court that the Keefes’ actual loss was over $2,000; that others had claims against Miller similar to the Keefes’, a common factor of the claims being the acceptance of money for. work not performed; that the other claimants were listed and considered in the bankruptcy proceeding; and that the claims for restitution, including the Keefes’, totalled $8,900.
The probation officer concluded by asking the court whether it wished to hear a petition to modify probation to determine the amount of restitution. The court responded informally that no hearing was necessary. Based on the memoranda, without any formal proceeding, defendant was informed of the increase in the amount of restitution. (256 Cal.App.2d at pp. 350-351.)
Affirming the order modifying probation, the Court of Appeal stated: “[Tjhere is no indication that any of the claims other than those of the Keefes were based on criminal conduct, nor is there any showing that they were based on fraudulent representations to the claimants of the sort made to the Keefes, resulting in defendant’s conviction. Rather they are premised on defendant’s breaches of construction contracts or on losses occasioned by liens being placed on the claimants’ properties as a result of defendant’s activities. Nevertheless, defendant’s conduct toward the other restitution claimants arose out his operation of the same business through which he defrauded the Keefes. In view of the circumstances that this business had been declared bankrupt shortly before the instant criminal proceedings and defendant owed over $10,000 to his creditors, the trial court and the probation office may have concluded that defendant’s borderline operation of his construction company put him in a situation in which he was likely to engage in fraudulent activities so as to warrant the conclusion that defendant’s rehabilitation could best be achieved in a context of complete reparation *628for the harm done his former customers. Such a conclusion belies the remoteness we found to exist in [People v. Williams (1966) 247 Cal.App.2d 394 (55 Cal.Rptr. 550)] and appears to us to be a reasonable exercise of discretion.” (256 Cal.App.2d at pp. 355-356.)
I heartily concur. And as late as Lent, apparently, so did the majority for they repeatedly cited Miller with approval, distinguishing it as a case involving, not acquittal, but “criminal acts uncharged or untried.” {People v. Lent, supra, 15 Cal.3d at pp. 486-487.) Now, however, because no hearing was conducted there into the question whether the other acts for which the probationer was required to make restitution were committed with the same state of mind as the offense of which he was convicted, Miller is clearly disapproved.
In reaching its conclusion the Miller court stated the standard of review which should be applied in this case. “Probation is granted in hope of rehabilitating the defendant and must be conditioned on the realities of the situation, without all of the technical limitations determining the scope of the offense of which defendant was convicted. In determining where to draw the line between what is a reasonable and what is an unreasonable condition, common sense and reason must limit the court’s discretion. This discretion must not be disturbed unless there has been a manifest abuse.” (256 Cal.App.2d at p. 356.)
No such abuse appears in this case. Both the Ward and the Garbuio transactions involved sales of worthless interests in real estate located in the same county. Both buyers received documents designated as mining claims and were given quitclaim deeds. Both transactions occurred at the same time and place. Finally, as the trial judge observed, although the evidence fell short of establishing criminality in the Ward transaction, it revealed that defendant owed the money and that allowing him to avoid this debt would be unjust. Under these circumstances, the trial court acted well within its discretion in determining that restitution to Ward would contribute to defendant’s rehabilitation.
I would affirm the order admitting defendant to probation on condition that he make restitution to Ward.
McComb, J., and Richardson, J., concurred.
The majority opinion fails to credit the student author. However, one need not be a literary critic to trace this idea to its source. It is expressed in virtually the same words in the student note. “[Restitution] should be limited solely to those acts which manifest a similar state of mind or intent as that required for the criminal offense. Since its purpose is to ‘redirect those same conscious or unconscious thoughts, emotions, or conflicts which motivated the crime,’ correctional restitution would not be warranted where the state of mind accompanying certain conduct differed from that of the criminal act.’’ (16 U.C.L.A.L.Rev. at p. 465.)
“At the conclusion of the probation hearing the trial judge declared that while he gave consideration to defendant’s acquittal of the theft of the $1,278, under the state of the record he did not deem the verdict to have absolved defendant of the ‘false statements about where those proceeds went and for what purpose.’ The judge was convinced ‘that Mr. Lent in his testimony before the jury perjured himself as respects the disposition of the proceeds of this $1,278 check.’ And, finally, the court found that the total ‘culpability of Mr. Lent is not displayed in the setting of this case but is reflected further in the evidence [produced] at the formal probation hearing.’ [¶] Under these circumstances we can find no abuse of discretion in the probation order.” (People v. Lent, supra, 15 Cal.3d at p. 487.)
I concurred in a separate opinion. “I concur in the judgment, but would qualify the statement that acquittal of the theft of the $1,278 ‘[ojrdinarily . . . would preclude inclusion of that item in the restitution order.’ (Ante, p. 487.) I assume arguendo that the acquittal here would have precluded ordering restitution of the sum involved in that count, but for the fact that ‘additional circumstances were developed in the unusually prolonged probation hearing.' (Id.) However, when the preponderance of the evidence produced at the trial itself supports such an order, additional evidence need not be presented at the probation hearing.” (15 Cal.3d 481, 488 (Clark, J., cone.).)