Filed 3/3/22 P. v. Hewitt CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Shannon L. Faherty, Judge. Affirmed in part; reversed in part.

Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Arlene Sevidal, Eric A. Swenson and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A felony complaint charged defendant and appellant Raymond Michael Hewitt and codefendant C.M. with first degree residential burglary (Pen. Code,[1] § 459, count 1), and defendant, C.M., and codefendant S.F. with receiving stolen property exceeding $950 in value (§ 496, subd. (a), count 2). Defendant entered a plea agreement and pled guilty to count 2, in exchange for a two-year term in state prison and the dismissal of count 1. Following a restitution hearing, a trial court ordered defendant and C.M. to pay $30,547[2] in restitution jointly and severally.

On appeal, defendant contends the court erred in ordering him to pay victim restitution jointly and severally since he only pled guilty to receiving stolen property, and there was no evidence connecting his crime to the victim’s economic loss. The People concede the error, and we agree and reverse the restitution order as to defendant. In all other respects, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND[3]

On January 5, 2020, E.M. (the victim) reported to the police that his home had been burglarized, and he was missing over 10 vehicles and dirt bikes, as well as the vehicle titles and keys. He also reported other items missing, including vehicle trailers, lamps, clothing, a generator, and baseball cards. Earlier that day, the victim, his son, and daughter-in-law drove around the area and saw some of his stolen vehicles and trailers on J.F.’s property. J.F. told them he bought the vehicles and trailers from codefendant C.M. J.F. brought the victim to C.M.’s home, where he found many of his stolen vehicles and other property.

The police contacted C.M.’s mother, S.F., and she told them she and C.M. received an opportunity to invest $1,000 with an unknown male to have access to a property where there were multiple vehicles. The male provided them with access to the vehicles, the vehicle titles, and keys. When asked if anyone else was on the property with her and C.M., she said no one else was allowed on the property. The police went to C.M.’s home and found several of the victim’s stolen vehicles. They found shoe impressions that matched impressions left on the victim’s property.

The police also contacted G.G., who lived next door to C.M. and his mother. The victim reported G.G. had one of his vehicles, and G.G. said C.M. sold it to him. G.G. said he had seen C.M. bring multiple vehicles to this property over the past few days. G.G. later reported that he had seen defendant driving a black Ford Ranger.

The police went to defendant’s home and saw a Ford Ranger that belonged to the victim as they approached the driveway. Defendant made eye contact with one of the officers and ran away. The officer pursued and detained him. When the officers conducted a sweep of the property, they found a Kawasaki dirt bike that was stolen from the victim’s property.

Defendant and C.M. were charged with first degree residential burglary (§ 459, count 1), and defendant, C.M., and S.F. were charged with receiving stolen property exceeding $950 in value (§ 496, subd. (a), count 2). Defendant entered a plea agreement and pled guilty to receiving stolen property, in exchange for two years in state prison and the dismissal of count 1. The plea agreement contained a Harvey[4] waiver, which allowed the court to consider the dismissed burglary charge for purposes of sentencing and restitution. The court referred the matter to the probation department to prepare a memorandum before the restitution hearing.

Prior to the restitution hearing, a probation officer submitted a restitution memorandum that summarized the facts of the case, including that the victim’s black Ford Ranger and his son’s 1993 Kawasaki dirt bike were found on defendant’s property. The probation officer and the victim reviewed the police report, and the victim confirmed that those vehicles were stolen from his property. He said that although they were recovered, they were heavily damaged and inoperable. The victim advised that the Ford Ranger was valued at $4,000 and the Kawasaki at $1,200. The probation officer advised him to submit proof of the monetary value of the vehicles.

The court held a restitution hearing on May 21, 2021. The prosecutor presented the victim as a witness to explain each item for which he was asking restitution. The victim testified as to the value of each of the items taken during the burglary, including the Ford Ranger, which he said was valued at $3,000, and his son’s Kawasaki dirt bike, which was valued at $1,200. He initially said the two vehicles were not returned to him. However, he later clarified that he was able to get the Ford Ranger and the Kawasaki back, as well as the baseball cards, but they were stolen again. When asked if there were any other expenses he had as a result of the burglary, he said no.

Defense counsel cross examined the victim, who confirmed that he recovered the Ford Ranger and the Kawasaki dirt bike. The victim testified that the Ford Ranger “had a little bit of damage [before it was stolen] but they damaged it more.” The court then stated: “I’m just going to quickly interject. This may streamline things. [¶] Based on the testimony presented in direct, at this point because there’s no testimony regarding repair costs for the ‘94 Kawasaki, 2000 Ranger and the baseball cards, I would not intend to make orders for those.” The prosecutor responded: “I agree, your Honor. The People wouldn’t be asking for those.” Defense counsel then stated, “If that’s the Court’s position, I have no further questions.”

Before the court issued its restitution order, defense counsel pointed out that defendant’s charge was for receiving stolen property, and the only two items found in his possession were the two items that were recovered, the Ford Ranger and 1994 Kawasaki. He further argued that nothing found at the scene indicated defendant was involved in the burglary, and in light of those circumstances, he would only be liable for restitution ordered for those two items. After the parties submitted, the court stated: “The Court is going to order all amounts consistent with [the victim’s] testimony except the 1994 Kawasaki of $1,200, the 2000 Ford Ranger for $3,000. And the baseball cards for $600.” It then ordered restitution in the amount of $27,770, plus a 10 percent administration fee, for a total of $30,547, and said, “That will be joint and several.” The prosecution sought to clarify the amount ordered, and the court then stated it would add one year of interest, for a new total of $33,324.

DISCUSSION

The Trial Court Abused its Discretion in Ordering the Victim Restitution to Be Paid

Joint and Several

Defendant argues the court abused its discretion in ordering him to pay victim restitution joint and several since he pled guilty to receiving stolen property, and there was no evidence to support a finding he was responsible for any portion of the economic losses claimed by the victim. He asserts that only the Ford Ranger and Kawasaki dirt bike were found in his possession and both items were returned to the victim; furthermore, there was no causal connection between his crime and C.M.’s crime (burglary) that caused the victim’s economic loss. We agree.

A. Standard of Review

A trial court’s restitution order is reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano); People v. Holmberg (2011) 195 Cal.App.4th 1310, 1320.) “The abuse of discretion standard is ‘deferential,’ but it ‘is not empty.’ [Citation.] ‘t asks in substance whether the ruling in question “falls outside the bounds of reason” under the applicable law and the relevant facts [citations].’ ” ([i]Giordano, at p. 663.)

B. The Economic Losses Claimed Were Not a Result of Defendant’s Conduct
Section 1202.4, subdivision (a)(1) provides: “It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.” Section 1202.4, subdivision (f), provides: “. . . 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.” (Italics added.) “[A] trial court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim.” (Giordano, supra, 42 Cal.4th at p. 664.)

Here, there was no factual or rational basis for the court ordering defendant to pay victim restitution jointly and severally. The evidence in the record shows that defendant was not responsible for any portion of the restitution ordered. The only stolen items found in his possession were the Ford Ranger and the Kawasaki dirt bike, and the victim testified that those items were returned to him. Although he testified that the Ford Ranger had some damage before it was stolen and claimed “they damaged it more,” there was no evidence that defendant caused any of the damage. Moreover, as the court noted, the victim did not present any evidence regarding repair costs. Consequently, the court stated it did not intend to order restitution for the Ford Ranger or the Kawasaki dirt bike, and the prosecutor responded, “I agree, your Honor. The People wouldn’t be asking for those.” After the parties submitted, the court stated: “The Court is going to order all amounts consistent with [the victim’s] testimony except the 1994 Kawasaki of $1,200, the 2000 Ford Ranger for $3,000. And the baseball cards for $600.” (Italics added.) Thus, the record shows the victim did not submit evidence as to repair costs for the Ford Ranger found in defendant’s possession, the People did not ask for restitution for the costs of the Ford Ranger or the Kawasaki, and the court did not include those vehicles in the restitution award. Rather, the restitution ordered was for the items C.M. took from the victim’s property. In other words, the victim’s losses claimed were not connected to defendant’s crime of receiving stolen property. (People v. Scroggins (1987) 191 Cal.App.3d 502, 506 (Scroggins).)

Although the court stated it was not including the Ford Ranger or the Kawasaki in its restitution award, it nonetheless ordered the restitution to be paid “joint and several.” Perhaps, as the People suggest, the court relied on the Harvey waiver to find defendant jointly and severally liable for the victim’s economic losses. The Harvey waiver allowed the court to consider the facts of the dismissed count in ordering restitution. (See People v. Ozkan (2004) 124 Cal.App.4th 1072, 1078.) However, the restitution award was still required to be based on the losses incurred by the victim as a result of defendant’s conduct. (§1202.4, subd. (f).) The court erred in ordering defendant to pay the restitution award jointly and severally, since the amount ordered was for losses that did not result from his conduct. (Scroggins, supra, 191 Cal.App.3d at p. 506 [restitution award stricken where defendant was convicted of receiving stolen property and other losses of burglary victim’s “were not connected to [his] crime”].)

C. There is No Need for Remand

The People concede that the court abused its discretion when it ordered defendant to pay restitution for items that were not causally connected to his criminal conduct. However, the People contend that we should still vacate the restitution order and remand the matter for further hearing “on the appropriate amount of restitution.” The People argue the court erred by telling the parties, during cross-examination of the victim, that it did not intend to order restitution for the two vehicles found in defendant’s possession because the statement “truncated the inquiry.” The People claim the victim “could have provided further details regarding the additional damage [defendant] caused” while he had the two vehicles in his possession. However, while the victim did testify that the Ford Ranger had damage before it was stolen and claimed, “they damaged it more,” the court correctly noted there was no testimony on direct examination regarding the cost to repair the vehicle. Furthermore, there was no evidence that this defendant caused any damage to the vehicle while it was in his possession. Finally, the prosecutor agreed and expressly declined to request restitution for the two vehicles that were found in defendant’s possession. Since the victim did not meet his burden of providing any evidence regarding the damage done to the Ford Ranger (see Giordano, supra, 42 Cal.4th at p. 664), and the prosecutor stated he was not requesting restitution for the Ford Ranger or the Kawasaki, we see no need to remand the matter.

In sum, defendant was convicted of receiving stolen property, and the vehicles found in his possession were recovered by the police and returned to the victim. Furthermore, there was no factual basis to conclude that defendant was responsible for the other losses from the burglary. Therefore, the trial court abused its discretion in ordering defendant to pay restitution to the victim jointly and severally, since the losses were not connected to his crime. (See Scroggins, supra, 191 Cal.App.3d at p. 506.)

DISPOSITION

The restitution order is reversed as to defendant. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.

[1] All further statutory references will be to the Penal Code unless otherwise noted.

[2] We note that the court initially ordered restitution in the amount of $30,547, to be paid joint and several. It then added an administrative fee and interest, for a new total $33,324. We also note some apparent discrepancies in the amounts of the fees added to the restitution award. However, we need not address them since they are not material to our disposition.

[3] The facts are taken from the police report, which the parties stipulated provided the factual basis for the plea.

[4] People v. Harvey (1979) 25 Cal.3d 754.