P. v. Jaramillo

Filed 4/4/07 P. v. Jaramillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant pleaded no contest to one count of receiving stolen property. (Pen. Code,  496.) He was placed on probation and ordered to pay direct restitution in the amount of $863.21. He was also ordered to pay probation supervision costs not to exceed $64 per month. He contends that the trial court abused its discretion in setting the amount of restitution and that the court erred in ordering payment of probation costs as a condition of probation. We agree.

Background

According to the probation report, on the evening of August 22, 2005 or the morning of August 23, the victim's car was burglarized and clothing purchased from a Banana Republic store, valued at $528.21, and Oakley sunglasses, valued at $335.00, were stolen. On August 23, the victim went to the Banana Republic store to report this and saw appellant returning the clothing that had been stolen. The store issued appellant a gift certificate for $333.37. The store rejected the return of the victim's jacket, valued at $194.84, because that purchase had been made on the internet. Appellant left the store with the gift certificate and the jacket.

Appellant pleaded no contest to the single charged count of receiving stolen property described as "Banana Republic clothing to include suit, shirt, and pants." Defense counsel stipulated that there was "a factual basis contained in the investigation reports." The probation report said that the victim was requesting restitution for the $528.21 he had to pay the Banana Republic store for the stolen property and a $25 late fee incurred while he was disputing the charges with the store. The victim also wanted reimbursement for the Oakley sunglasses, for a total of $888.21. The probation report recommended "An order of restitution including, but not limited, to $553.21."

At the time of sentencing, the court asked whether $528.21 was the total amount for restitution. The prosecutor told the court that the victim had submitted "another receipt for sunglasses stolen on the same date, same transaction from Sunglass Hut, amount of $335.58." Defense counsel argued that because appellant had not been charged with burglary of the car, but only with possession of stolen property for the Banana Republic clothing, the victim was not entitled to restitution for the sunglasses.

The trial court placed appellant on probation and ordered restitution to the victim for $863.21. The court also ordered probation supervision costs not to exceed $64 per month. Immediately thereafter the court asked appellant if he accepted probation under those conditions and appellant responded that he did.

Restitution

Appellant challenges the order of the court that he pay restitution for the Oakley sunglasses. He contends, "the trial court abused its discretion by ordering appellant to pay direct restitution for an item he was neither charged with nor admitted to possessing."

Penal Code section 1202.4 implements a victim's constitutional right to restitution. As stated in section 1202.4, subdivision (a)(1), the Legislature intended to provide "that 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." Hence, the reimbursable loss identified by section 1202.4, subdivision (a)(1) is the loss resulting from the crime of which the defendant was convicted. Section 1202.4, subdivision (f), states in pertinent part that "in every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court."

Appellant argues that because he was not charged with the theft of the sunglasses, "the theft of the [sun]glasses was not an economic loss incurred as the result of appellant's conduct, as required by Penal Code section 1202.4, subdivision (f)." Respondent, citing People v. Carbajal (1995) 10 Cal.4th 1114, 1122, argues that full restitution for the items removed from the victim's vehicle "is related to both the crime of which appellant was convicted and future criminality. . . . Even assuming that appellant was the fence and not the thief, auto burglaries are encouraged by the ready availability of a market in stolen goods. Appellant's willingness to trade in the recently stolen Banana Republic items for a gift certificate established his complicity in the underlying theft." Thus, full restitution was a deterrent to future criminality.

In Carbajal, the defendant was convicted of leaving the scene of an accident (Veh.Code, 20002, subd. (a)). Our Supreme Court upheld, as a condition of probation, a requirement of restitution to the owner of the car damaged in the accident. The court reasoned that the restitution was reasonably related (1) to the crime of leaving the scene of an accident, since that crime imposes on the nonfleeing driver the additional costs of locating the fleeing driver and, in some cases, the entire cost of the accident, and (2) to the goal of deterring future criminality by forcing the defendant to accept the responsibility he attempted to evade by leaving the scene of the accident. (People v. Carbajal, supra, 10 Cal.4th at pp. 1123-1124.)

The Carbajal court, citing its prior case of People v. Lent (1975) 15 Cal.3d 481, stated that "an order for restitution, which attempts to make a victim whole, 'has generally been deemed a deterrent to future criminality,' and concluded the court is not limited to the transactions or amounts of which the defendant is actually convicted. We therefore found [in Lent ] no abuse of discretion in the restitution order for funds taken in the transactions of which the defendant was acquitted." (People v. Carbajal, supra, 10 Cal.4th at p. 1123.)

The defendant in Carbajal was clearly responsible for the damage to the victim's vehicle in the accident from which he fled. Appellant here was never charged with or found to be criminally responsible for the burglary of the victim's car. Appellant was charged and pled no contest to receiving stolen property, specifically the Banana Republic clothing. Nevertheless, the trial court ordered appellant to pay restitution for items taken in the auto burglary. The court did not conclude--nor from this record could it have--that appellant was responsible for the loss of the sunglasses. As appellant points out, it is not possible to say that appellant burglarized the victim's car because conscious possession of recently stolen property does not permit conviction on those facts alone, citing CALCRIM No. 376 and People v. Williams (2000) 79 Cal.App.4th1157, 1171-1174. This brings us back to Penal Code section 1202.4, subdivision (f). On this record, one cannot say that the victim's economic loss of his sunglasses was a result of the appellant's conduct in receiving the stolen Banana Republic clothing. The order of restitution must be reduced by $335.58.

Probation Costs

Appellant contends, "The trial court erred in ordering payment of additional probation costs as a condition of probation."

Penal Code section 1203.1b, subdivision (a), provides that a defendant may be ordered to pay "all or a portion of the reasonable cost of any probation supervision," depending upon the defendant's ability to pay. [1] However, section 1203.1b does not authorize payment of either costs or fees as a condition of probation. "These costs are collectible as civil judgments; neither contempt nor revocation of probation may be utilized as a remedy for failure to pay. (Pen. Code, 1203.1b, subd. (d).)"[2] (People v. Washington (2002) 100 Cal.App.4th 590, 592.) Thus, it is well established that the trial court may not require, as a condition of probation, payment of the cost of preparation of the probation report or the costs incurred in probation supervision. (People v. Hart (1998) 65 Cal.App.4th 902.)

This record is not clear as to whether payment of a probation supervision fee was ordered as a condition of probation. At the time of sentencing, the trial court ordered the payment of a probation supervision fee and immediately thereafter asked the appellant if he accepted the terms and conditions of probation. The minute order does not clarify whether payment of probation supervision costs of $64 per month is one of appellant's probation conditions. To the extent that the record can be interpreted as stating that appellant's probation is conditioned upon payment of a probation supervision fee, modification of the conditions of probation to strike the probation supervision fee is appropriate. Accordingly, we will direct the trial court to modify the probation order by striking the condition that appellant pay a probation supervision fee from the conditions of probation.

Disposition

That portion of the judgment (order granting probation) directing appellant to pay a probation supervision fee as a condition of probation is stricken. The case is remanded to the trial court with directions to institute proceedings in accordance with Penal Code section 1203.1b to determine appellant's ability to pay all or part of the costs of his probation. If the trial court determines that appellant has the ability to pay, the probation supervision fee shall not exceed $64 per month. The trial court shall modify the restitution award to reduce the amount by $335.58. As modified, we will affirm the judgment.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] Penal Code section 1203.1b, subdivision (a), provides in pertinent part, "In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report . . . ."

[2] Penal Code section 1203.1b, subdivision (d), provides in pertinent part, "Execution may be issued on the order issued pursuant to this section in the same manner as a judgment in a civil action. The order to pay all or part of the costs shall not be enforced by contempt."