Filed 5/4/17 P. v. Carnero CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MIGUEL CARNERO,
Defendant and Appellant.
B270935
(Los Angeles County
Super. Ct. No. BA420412)
APPEAL from an order of the Superior Court of Los Angeles
County, Laura F. Priver, Judge. Reversed and remanded.
______
Victor H. Toscano for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
______
2
Appellant Miguel Carnero appeals from the trial court’s
post-conviction order requiring him to pay victim restitution.
The court imposed victim restitution as a probation condition,
but it failed to obtain appellant’s consent to victim restitution as a
condition of his probation, and thus the victim restitution order
cannot stand. Accordingly we reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Robert Berg were neighbors, who, over the
years had a series of disputes. In 2011, Berg obtained a criminal
protective order prohibiting appellant from making contact with or
photographing Berg.
On December 15, 2013, Berg and one of his workers were
outside working on Berg’s property when they saw appellant
get into his truck. It appeared that appellant began taking
photographs of them with his cellular phone. Berg walked across
the street to another one of his properties, and in so doing walked
in front of appellant’s truck. Appellant picked up his phone
and pointed it at Berg, and Berg told appellant to stop taking his
picture. According to Berg, appellant put his truck into gear, pulled
out from the curb, and drove at him. Berg claimed that the truck
struck him and that the truck dragged him for about 24 feet.
Appellant denied taking photographs of Berg and denied that Berg
was injured in the incident.
Appellant was arrested and charged with assault
with a deadly weapon in violation of Penal Code1 section 245,
subdivision (a)(1) (count 1) and disobeying a court order in violation
of section 166, subdivision (a)(4) (count 2). The jury found appellant
guilty of count 2, disobeying a court order and acquitted him of
count 1.

1 All statutory references are to the Penal Code.
3
At the initial sentencing hearing on April 27, 2015, the
prosecutor requested that the court place appellant on probation,
with the condition that he serve 30 days in jail. He also requested
that the court issue a protective order and added, “[I]t sounds like
we’re going to need a restitution hearing with regards to Mr. Berg’s
medical bills.”2 The court responded: “I think maybe [we need]
some case law on whether—given the nature of the verdicts,
whether that’s appropriate” and the prosecutor agreed to submit
a brief on the issue. Thereafter, the court granted appellant
summary probation for three years on the conditions that appellant
serve 90 days in jail (minus 33 days for good time/work time credit)
and obey all laws. The court also reissued the protective order and
ordered appellant to pay various statutory fees, assessments and
fines. During the hearing, the court did not inquire of appellant
whether he agreed to the terms and conditions of the probation.
As to victim restitution, the court did not order victim restitution as
a condition of the probation at that time, and instead directed that,
“we’ll have to set a restitution hearing date, and I want legal
memorandum as it relates to the medical [bills].”
At a subsequent hearing on October 28, 2015, the prosecution
submitted a binder containing medical records and a statement
from Berg indicating he suffered $41,684.98 in economic damages
as a result of appellant’s conduct. The prosecutor argued that
victim restitution was appropriate even though appellant had been
acquitted on the assault charge because appellant’s conduct of
violating the court’s order was sufficiently connected to Berg’s
medical expenses. Appellant disagreed. He responded that he was
not sentenced to probation, and that instead he did “time.” The
court corrected appellant, reminding him that the court had placed

2 In Berg’s victim impact statement he claimed that he
incurred approximately $50,000 in medical costs as a result of the
assault.
4
him on three years of summary probation, including 90 days in jail.
Appellant also argued that the damages Berg claimed were not
sufficiently connected to the crime for which appellant was
convicted and thus he urged the court to deny restitution. The
court disagreed with appellant and ordered him to pay victim
restitution to Berg of $41,684.98 as a condition of the probation.
The court further observed, “[i]f [appellant] does not wish to pay
victim restitution in that amount I certainly could give him the
rest of the time in county jail and I think if he did a complete
and full sentence he—and he wasn’t on probation, he wouldn’t be
required to pay [Berg].” Appellant pointed out that the court
had not previously offered him a chance to reject probation on
the grounds that he did not want (or could not afford) to pay the
victim restitution. The court responded: “Does he want jail time?
I’ll give him the jail time. If he wants to do the balance of the year
in the county jail, fine.” Appellant told the court, “Yeah, I’d rather
do jail.”
The prosecutor objected, complaining that appellant would
receive a “windfall” because he had already accepted probation and
had been free of custody serving probation during the intervening
months. He argued that appellant had agreed to probation knowing
that the amount of victim restitution would be determined at a
subsequent hearing. The court asked each side to “brief [the issue]”
of whether it could resentence appellant—whether appellant could
be held to have knowingly accepted probation or whether he was
entitled to reject probation and be resentenced. Counsel agreed to
submit briefing on the matter.
At the hearing on January 6, 2016, the prosecutor argued
that because appellant had “agreed to pay restitution at the time
he was granted probation” he could not later change his mind
and request to be sentenced so that he could avoid paying victim
restitution. Appellant, however, reminded the court that it had
5
not previously asked him “whether he wanted probation. The court
just ordered [it].” To which the court responded: “I always ask at
the end if [the defendant] understands and accepts the terms and
conditions of probation.” The court recollected that at the initial
sentencing hearing it had ordered jail time and victim restitution
as a condition of the probation and that appellant understood and
accepted those terms.
Appellant timely appeals.
DISCUSSION
Appellant challenges the victim restitution order arguing
that because he was sentenced to jail as opposed to being placed
on probation the court erred in ordering restitution for losses that
directly resulted from the crime of which he was acquitted. In any
event, he asserts that—assuming that the victim restitution was
ordered as a condition of probation—the order violated appellant’s
right to due process because the court imposed victim restitution
without obtaining appellant’s consent to victim restitution as a
condition of probation. Only appellant’s latter contention has merit.
The court’s authority to order victim restitution under
California law depends on whether the court imposes a judgment
and sentence or grants the defendant probation. (People v. Walker
(2014) 231 Cal.App.4th 1270, 1274.) When judgment is imposed
and the defendant is sentenced to a period of incarceration (in
prison or jail), victim restitution is governed by section 1202.4,
subdivision (a)(1), which provides, “a victim of crime who incurs
any economic loss as a result of the commission of a crime shall
receive restitution directly from any defendant convicted of that
crime.” (People v. Woods (2008) 161 Cal.App.4th 1045, 1049
[“[c]ourts have interpreted section 1202.4 as limiting restitution
awards to those losses arising out of the criminal activity that
6
formed the basis of the conviction”], citing People v. Lai (2006)
138 Cal.App.4th 1227, 1247.)
In contrast, where probation is granted, section 1203.1,
governs an award of victim restitution. A section 1203.1
restitution order is not limited to losses arising out of the conduct
for which the defendant was convicted. (People v. Woods, supra,
161 Cal.App.4th. at p. 1050.) “ ‘California courts have long
interpreted the trial courts’ discretion to encompass the ordering
of restitution as a condition of probation even when the loss was
not necessarily caused by the criminal conduct underlying the
conviction,’ [including] conduct underlying dismissed and
uncharged counts [citation], and by conduct resulting in an
acquittal [citation].’ ” (People v. Anderson (2010) 50 Cal.4th
19, 27, quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
In addition, because probation is a privilege, probationers may
be required to undertake obligations, including payment of victim
restitution as a condition of probation. (See People v. Olguin (2008)
45 Cal.4th 375, 384.) If, however, “a defendant believes the
conditions of probation are more onerous than the potential
sentence, he or she may refuse probation and choose to serve
the sentence.” (Id. at p. 379.)
The trial court’s determination of whether to impose
probation conditions is reviewed for abuse of discretion and error
will not be found unless the decision is arbitrary or capricious,
exceeds the bounds of reason, or rests upon a demonstrable error
of law. (People v. Carbajal, supra, 10 Cal.4th at pp. 1120-1121.)
Appellant asserts that any victim restitution order here was
governed by section 1202.4 because the court ordered him to serve
90 days in jail. The record does not support his characterization of
his punishment. The court did not enter a judgment and sentence
in this case. Instead, the court suspended the imposition of the
judgment and the sentence and placed appellant on summary
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probation based on various conditions including that appellant
serve 90 days in jail. The fact that the court conditioned appellant’s
probation on his serving jail time did not alter the character of the
punishment from probation to judgment and sentence. (In re Hays
(1953) 120 Cal.App.2d 308, 310 [ “ ‘An order placing a defendant on
probation, even though it includes as a condition a period of
detention in the county jail, is not a judgment and sentence.’ ”].)
In view of the record, section 1203.1, not section 1202.4 governed
the victim restitution order.
This notwithstanding, we conclude that the court’s victim
restitution order is reversible error because it was based on the
court’s erroneous recollection that appellant had accepted victim
restitution as a condition of his probation. At the first sentencing
hearing, the court specifically reserved the issue of victim
restitution for another hearing, directing the parties to submit
legal briefing on whether, given the nature of the verdicts, victim
restitution would be a valid probation condition. Consequently,
at the time the court granted probation, the victim restitution was
not a condition of the probation; the court had not yet determined
whether the restitution order was appropriate nor had it
determined the amount of the restitution. As a result, the court
was mistaken when, at the subsequent hearing on January 6, 2016,
it recalled that it had previously asked appellant whether he
understood and accepted the terms of probation, including victim
restitution, and that appellant had accepted that condition. The
record does not support the court’s recollection of the proceedings.
It would be inherently unfair to find that the appellant had agreed
to pay victim restitution as a probation condition when he did not
know that condition would be imposed or know the amount of the
restitution. Under the circumstances, we conclude that the trial
court abused its discretion in ordering appellant to pay victim
8
restitution as a condition of his probation.3 (People v. Olguin,
supra, 45 Cal.4th at p. 379.)
DISPOSITION
The order granting appellant probation is reversed and
the matter is remanded to the trial court with directions to vacate
the victim restitution order and to conduct a new sentencing
proceeding.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
LUI, J.

3 In reaching this conclusion we do not assess the merits
of the court’s finding that a sufficient causal connection existed
between Berg’s injuries and appellant’s conviction to support
a victim restitution order or whether victim restitution is an
otherwise legally valid condition of appellant’s probation.