Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. F424698, Charles S. Crandall, Judge
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, David C. Cook, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Donald Frank Hughes appeals a judgment following his no contest plea to one felony count of unlawfully disposing hazardous waste. (Health & Saf. Code, § 25189.5, subd. (b).) He was placed on probation and, among other things, ordered to pay restitution in the amount of $8,103.45 to the San Luis Obispo County Department of Public Health (Department). (Pen. Code, § 1203.1.) We conclude, among other things, that the trial court did not abuse its discretion by ordering Hughes to pay restitution to the Department for costs relating to the identification, monitoring and testing of hazardous materials at his business. We affirm.
FACTS
Hughes owned a radiator shop. He had a prior conviction for the unlawful disposal of hazardous waste.
On November 2, 2008, Mark Baldwin saw Hughes carry a container of fluid from Hughes's radiator shop to a sewer drain 50 yards away. Baldwin watched as Hughes dumped the fluid into the drain.
Travis Buckland knew Hughes and had worked with him. Buckland told police that he believed that Hughes was dumping "some type of automotive fluid into the sewers."
City emergency workers were notified about Hughes's actions. They went to the scene and noticed that there were "spills" of automotive fluid "in the alleyway leading from the sewers" to Hughes's radiator shop. Baldwin told the police that Hughes had spilled "the fluid as he was traveling back and forth between his radiator shop."
Police officers went to Hughes's business and attempted to contact him. Hughes refused to come outside. He then attempted to ride away on a bicycle. The officers pursued him, stopped him, and questioned him about "the illegal dumping." The police report stated, "Hughes became angry and started yelling at the officers." Hughes had "the objective symptoms of alcohol intoxication." Hughes was arrested.
On November 3, Scott Milner, an environmental health specialist with the Department, went to Hughes's shop because police told Milner that Hughes was "dumping hazardous waste into a sewer drain...." Milner took samples from that drain and took them to a "state-certified lab" for analysis. The samples contained "very high levels" of copper, lead and zinc.
Milner inspected the radiator shop. He determined that it was a facility that was generating hazardous waste. He took fluid samples at the shop and submitted them for laboratory analysis. The samples contained copper, lead and zinc and were classified as hazardous wastes. Milner discovered that Hughes was storing 20 gallons of hazardous liquid waste in a plastic trash can. This was not a proper container to hold such material. Hughes was also storing liquid waste material in five gallon buckets. Milner took samples from four of the buckets. Laboratory tests confirmed that three of the bucket samples contained hazardous waste levels of copper, lead and zinc.
After Hughes's no contest plea, the Department submitted a claim for restitution for "costs associated with the Donald Hughes case." It attached a series of invoices for expenses totaling $8,530.20. The trial court ordered Hughes to pay restitution to the Department in the amount of $8,103.45. The Department's costs included, among other things, emergency response clean up costs of $261.00 for November 3, 2008; "site remediation oversight" costs of $43.50 for November 5; laboratory analytic fees totaling $6,200.95 for November 7, November 24 and December 4; and laboratory analytic fees of $680.00 for December 28.
DISCUSSION
Restitution
Hughes contends the trial court erred by ordering him to pay restitution to the Department. We disagree.
The trial court found that the Department was an indirect victim of Hughes's crime. It awarded restitution under Penal Code section 1203.1, which provides, in relevant part, "The court shall provide for restitution in proper cases." (Pen. Code, § 1203.1, subd. (a)(3).) "The court shall also consider whether the defendant as a condition of probation shall make restitution to a public agency for the costs of an emergency response...." (Id., subd. (e).) The trial court found that restitution was appropriate "for purposes of rehabilitation as well as to deter future criminality."
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) "Restitution has long been considered a valid condition of probation." (Id. at p. 1121.) "Probationary restitution may be imposed even if a defendant has not been convicted for a particular offense 'because probation is an "'"act of clemency and grace, "'" not a matter of right.'" (People v. Giordano (2007) 42 Cal.4th 644, 663, fn. 7.)
Some of the statutory provisions regarding restitution must be construed narrowly, e.g., Penal Code section 1202.4. (People v. Anderson (2010) 50 Cal.4th 19, 29.) But "[w]hen section 1203.1 provides the court with discretion to achieve a defendant's reformation, its ambit is necessarily broader, allowing a sentencing court the flexibility to assist a defendant as the circumstances of his or her case require." (Ibid.) "While we review all restitution orders for abuse of discretion, we note that the scope of a trial court's discretion is broader when restitution is imposed as a condition of probation." (People v. Giordano, supra, 42 Cal.4th at p. 663, fn. 7.)
"The government may be the beneficiary of restitution under section 1203.1 if it has incurred actual loss due to the crime...." (People v. Rugamas (2001) 93 Cal.App.4th 518, 523.) But restitution cannot include the "general costs of prosecuting and rehabilitating criminals." (Ibid.) It may, however, include unusual or out-of-pocket non-prosecution costs incurred because of the defendant's actions. (Ibid.)
Here the Department incurred extensive investigative costs relating to toxic chemical identification and testing. The trial court could reasonably find that they fell outside the category of the "general costs of prosecuting" Hughes. (People v. Rugamas, supra, 93 Cal.App.4th at p. 523.) The Department is not a division of the police or the district attorney's office; it is a public health agency, and it incurred costs to deal with a public health problem.
Even if the Department's investigation assisted the prosecution, the result does not change. In People v. Tarris (2009) 180 Cal.App.4th 612, the defendant was convicted of unlawfully disposing of hazardous waste. The Court of Appeal held that a restitution order could include the costs incurred by the county health department in investigating the content of the waste materials. It said, "[I]mposing probation conditional upon defendant paying HMMD's [the county's hazardous materials management division] investigation costs... was within the trial court's broad discretion under Penal Code section 1203.1" (Id. at p. 626.) "Payment of HMMD's investigation costs was a means of impressing upon defendant in tangible fashion that illegal behavior, consisting of attempting illegally to dispose of hazardous waste for free, brings financially painful consequences...." (Id. at p. 625.) We agree with the Tarris decision. "'"Restitution is an effective rehabilitating penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused."'" (People v. Anderson, supra, 50 Cal.4th at p. 27.)
Hughes claims "the costs incurred by the Department... were ordinary regulatory expenses incurred pursuant to the Department's authority to oversee businesses which generate hazardous waste." But these were not costs incurred as part of regularly scheduled or routine monitoring inspections of businesses in the community. The trial court could reasonably infer that the costs the Department incurred were "unusual expenses directly incurred because of [Hughes's] conduct." (People v. Rugamas, supra, 93 Cal.App.4th at p. 523.) The Department promptly went to Hughes's business because it learned that Hughes had dumped hazardous waste into a sewer drain.
Hughes suggests that any restitution should have been limited to the costs of cleaning up the sewer drain because that is where he dumped the toxic material. He claims the Department's costs involving his business should have been excluded. But Hughes's business was directly involved in his criminal activities. It was the place where he stored these toxic materials. Hughes left a toxic trail leading from the sewer drain to his shop. The Department was acting to protect the public from the source of the toxic pollution and Hughes's toxic business activities were at the root of the problem. The probation report reflects that Hughes is a repeat toxic polluter who has a recalcitrant attitude about the consequences of unlawfully dumping dangerous wastes. The probation department stated that Hughes "takes no responsibility for his actions [H]e has persisted in ignoring the law and all concern for public safety in continuing to dispose of toxic waste fluids from his place of business.... He maintains a somewhat hostile attitude toward the justice system, and clearly believes he can operate above the law. He will try to... get away with what he thinks he can, either through surreptitious illegal activity, or through denial and manipulation." (Italics added.)
From this report, the trial court could reasonably infer that the Department had to incur special monitoring activities and costs at his business because of Hughes's attitude, conduct and the continuing danger his toxic activities posed for the public. As the probation department noted, Hughes "cannot be allowed to continue to put the community at risk by his actions."
Hughes notes that some of the costs were incurred a substantial time after he committed the offense. But the Department was responding to a public health problem caused by a repeat toxic polluter, and, given Hughes's attitude, a reasonable inference is that it needed time to test the substances, monitor toxicity and verify compliance. The trial court found that the $8,103.45 restitution costs were "the response costs necessary to prevent or mitigate the release of hazardous substances." Hughes has not shown that in making this finding that the court abused its discretion. (People v. Tarris, supra, 180 Cal.App.4th at p. 626.) The Department's costs were "reasonably related to [Hughes's] crime and were imposed for [his] reformation...." (People v. Rugamas, supra, 93 Cal.App.4th at p. 523.) Probation restitution is appropriate to fulfill the goals of public safety and rehabilitation. (People v. Carbajal, supra, 10 Cal.4th at p. 1127.) Moreover, "'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.'" (People v. Anderson, supra, 50 Cal.4th at p. 27.) As the trial court recognized, allowing the public to pay these costs would do nothing to "deter future criminality."
We have reviewed Hughes's remaining contentions and conclude he has not shown an abuse of discretion.
The judgment is affirmed.
We concur: YEGAN, J. COFFEE, J.