Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Alex Ricciardulli, Judge. Los Angeles County Super. Ct. No. BA298088
Law Offices of James E. Blatt and James E. Blatt for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Avedis Messrelian appeals from the judgment entered following his no contest plea to being a felon in possession of a firearm. (Pen. Code, § 12021, subd. (a)(1).) After a contested hearing, he was ordered to pay restitution to the victims as a term and condition of probation. He contends that the restitution order violated the principles set forth in People v. Harvey (1979) 25 Cal.3d 754 (Harvey), did not relate to the charge to which he had pled, and was not supported by the evidence. We affirm the judgment.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Given that defendant is challenging only the restitution order, it is not necessary to provide the facts underlying the charges involved. It is sufficient to note that on February 16, 2006, defendant was charged in a complaint with multiple counts, including forcible rape (§ 261, subd. (a)(2)), forcible oral copulation (§ 288a, subd. (c)(2)), kidnapping (§ 209, subd. (b)(1)), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)), false imprisonment (§ 236), residential burglary (§ 459), and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). He was also charged with various enhancements that are not relevant to this appeal.
On May 19, 2006, defendant pled no contest to violating section 12021, subdivision (a)(1). He was released from custody and ordered to appear for his June 27 sentencing hearing. On June 27, he was placed on formal probation. The court advised him that as a term of probation, he was “to make restitution to the victim” in an amount to be determined at a later hearing. The remaining counts were dismissed.
On November 16, 2006, the parties met to discuss restitution. They informed the court that they were unable to agree on an amount. The deputy district attorney wanted defendant to pay restitution for jewelry defendant had taken and wages the victims had lost. Defendant’s attorney argued that at the time of the plea, defendant was not told that he would have to pay restitution for conduct related to the dismissed counts, as required by Harvey. Counsel asserted that defendant had pled to being a felon in possession of a firearm and that the victims’ claims for restitution were unrelated to that charge. The trial court ordered briefing on the matter.
On December 14, 2006, the court ruled that by accepting his grant of probation, which included the order that he pay restitution to the victim, defendant had waived his right to object on Harvey grounds. However, because defendant claimed that he did not expect to pay restitution for conduct unrelated to the charge to which he had pled, the trial court gave him the option of withdrawing his plea. This colloquy followed.
“THE COURT: And I believe that would be a sufficient remedy, if the defendant should choose to avail himself of it.
“[DEFENSE COUNSEL]: To withdraw a plea and look at multiple life sentences, Your Honor, for restitution?
“THE COURT: I’m just telling you, if restitution means that much to you, we can go back to the status quo.
“[DEFENSE COUNSEL]: It doesn’t mean that much, Your Honor.”
The court set the matter for a restitution hearing.
In a letter to the court, Ms. G., the named victim in the sexual assault counts, claimed lost wages in the amount of $13,000. She had been unable to perform her duties as a babysitter for her niece, Mr. D.’s child. Mr. D. claimed a property loss of $3,600, lost wages of $9,876, and the cost of installing a security system of $1,068.84. Defendant filed a letter brief disputing the amounts requested. He argued that the victims failed to provide any documentary evidence to support their claims of loss. He stipulated to the cost of installing the security system.
Mr. D. is referred to by defendant as Ms. G.’s brother-in-law, by the Attorney General as her father, and by the deputy district attorney as her brother. We cannot discern from the record who, if anyone, is correct.
On January 25, 2007, the court heard further from Mr. D. Defendant asked no questions and submitted on his written brief. The court ordered defendant to pay restitution to Ms. G. in the amount of $13,000 and to Mr. D. in the amount of $5,676.84.
The court allowed Mr. D.’s claim for the stolen jewelry, the cost of the installation of the security system, and six days of lost wages due to his participation in the court proceedings. It denied the remainder of his lost wage claim.
DISCUSSION
I. Defendant Forfeited His Claim Pursuant to People v. Harvey
Defendant contends that the court erred when it awarded restitution for conduct relating to counts that were dismissed. In Harvey, supra, 25 Cal.3d at page 758, our Supreme Court held that implicit in a plea bargain where counts are dismissed “is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count.” Defendant is correct that the plea transcript reflects he was not advised that the court would consider all of the counts in the complaint when it decided the issue of restitution. As a result, he argues, the court was authorized only to order restitution for losses caused by his possession of a firearm.
Defendant ignores one salient point. After the trial court accepted that defendant may not have understood he would have to pay restitution to the victim as a consequence of his plea, it gave him an opportunity to withdraw his plea. Generally, when a defendant has not been properly advised of the consequences of his or her plea, the remedy is for the court to allow the plea to be withdrawn. (See People v. Walker (1991) 54 Cal.3d 1013, 1022-1024.) Defendant was given the choice of withdrawing his no contest plea and facing all of the filed charges anew or accepting that the dismissed charges might serve as a basis for restitution. He opted for the latter. Having declined to accept the appropriate remedy that was offered by the court, he may not be heard to complain.
II. The Trial Court Properly Ordered Restitution
Defendant contends that the court abused its discretion when it ordered restitution for losses unrelated to his conviction. He argues that pursuant to section 1202.4, subdivision (a)(1), a victim is entitled to restitution for any economic loss that is incurred as a result of the commission of a crime from the individual who committed that crime. Drawing on language from former section 1203.04, a prior restitution statute, he argues that compensable losses are those caused by a defendant as a result of committing the crime of which he or she was convicted.
As the Attorney General points out, however, the trial court ordered restitution as a condition of probation pursuant to section 1203.1. “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. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation].” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
The trial court has discretion “to order restitution as a condition of probation where the victim’s loss was not the result of the crime underlying the defendant’s conviction, but where the trial court finds such restitution will serve one of the purposes set out in Penal Code section 1203.1, subdivision (j).” (People v. Carbajal, supra, 10 Cal.4th at p. 1122.) Under section 1203.1, subdivision (j), the court may impose any “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 that breach, and generally and specifically for the reformation and rehabilitation of the probationer.”
“A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486.)
Defendant contends that “there is absolutely no relationship or connection between being a felon in possession of a weapon, which is a victimless crime, to the victims’ claims for restitution.” He focuses on the elements of the crime of which he was convicted and argues that the restitution ordered “has no rational or reasonable relationship to a conviction for mere possession (not use or display) of a gun by a felon.”
We disagree. Defendant asks us to consider his conviction in a vacuum. His focus is far too narrow. While it may be true that a defendant’s possession of a handgun may not necessarily cause harm to a victim, the trial court considered the circumstances and conduct underlying defendant’s conviction when it determined that there was a relationship between his conviction and the victims’ losses. Defendant offers no argument or authority suggesting the court erred in doing so.
The deputy district attorney argued that defendant entered Mr. D.’s home with the firearm. She urged that his possession of the firearm allowed him to take Mr. D.’s property unmolested and caused him to terrorize Ms. G. to the extent that she was unable to work for months after the incident. Defendant does not dispute the factual basis of the argument—i.e., that the presence of the firearm facilitated the taking of property and caused extreme duress. The Legislature also has recognized that the possession of a firearm in circumstances similar to those in the present case is inherently dangerous. It enacted the statutes which impose additional prison terms for crimes in which the defendant was armed or used a firearm “to deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime.” (People v. Reaves (1974) 42 Cal.App.3d 852, 856.) We conclude the trial court properly found that there was the requisite relationship between defendant’s possession of the firearm and the victims’ loss when it ordered restitution.
We also conclude that the order of restitution is related to the goal of deterring future criminality. It is undisputed that defendant is a convicted felon who nonetheless took a firearm into Mr. D.’s home. By ordering restitution for the damage caused by the presence of the firearm, the trial court reasonably selected a rehabilitative measure designed to correct defendant’s behavior. “Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.” (Kelly v. Robinson (1986) 479 U.S. 36, 49, fn. 10.)
The trial court did not abuse its discretion by ordering restitution. The order compensated the victims for losses caused by defendant’s breach of the law and was designed to prevent his future criminality.
III. The Restitution Award Is Supported by the Evidence
Defendant attacks two elements of the restitution order, the $3,600 to Mr. D. in compensation for jewelry that defendant stole and the $13,000 to Ms. G. for lost wages. He contends that neither award was supported by the evidence. He complains that “the victim provided no evidentiary proof of the existence or value of the allegedly stolen jewelry, other than his own written estimated value.” As to Ms. G.’s claim, defendant states that “[t]here were no bank records of deposits, canceled checks or any tax records to support that the victim had ever been receiving this income.” Defendant also contends that Ms. G. was working at a bakery when they met. He asserts that she should have brought in records with respect to her wages from that job, as it was unlikely that she was paid to work at the bakery and to babysit her niece.
“Trial courts have broad discretion to order victim restitution and such an order will not be reversed if there is a ‘factual and rational basis for the amount of restitution.’ [Citation.]” (People v. Rubics (2006) 136 Cal.App.4th 452, 462.) The standard of proof at a restitution hearing is a preponderance of the evidence. We do not reweigh the evidence. Instead, we determine whether there is sufficient evidence to support the finding of the trier of fact. (People v. Baker (2005) 126 Cal.App.4th 463, 468-469.)
Defendant argues that the court awarded restitution for the loss of the jewelry based on Mr. D.’s opinion as to its value. He asserts that something more is required. He is incorrect. A victim’s testimony concerning the value of property taken is prima facie evidence of value for restitution purposes. Once a prima facie showing of loss has been made, it becomes the defendant’s burden to establish that the amount of loss is different than that claimed by the victim. (People v. Prosser (2007) 157 Cal.App.4th 682, 690-691.)
The same principle applies to Ms. G.’s lost wage claim. She stated that she performed babysitting chores for Mr. D. and his wife. They paid her $1,000 a month, and defendant’s conduct caused her to lose 13 months of work or $13,000 in wages. This provided a prima facie showing of her wage loss.
Defendant had prior notice of the basis for the requested restitution. He filed a written brief disputing the amount of restitution sought by the victims. Mr. D. was present at the hearing. He provided the opinion that the stolen jewelry was worth $3,600 and stated that he employed Ms. G. However, defendant did not take the opportunity to question Mr. D. as to the basis of his opinion or challenge whether Mr. D. had, in fact, paid Ms. G. to babysit. As to Ms. G.’s lost wage claim, defendant merely argued that she was a proven liar who could not be believed and that it was unlikely the financially strapped Mr. D. and his wife would have paid her $250 a week to babysit. Defendant’s attack on Ms. G.’s character and his speculative claims do not constitute evidence. As the victims made a prima facie showing of their loss and defendant failed to present contrary evidence, sufficient evidence supports the trial court’s restitution award.
DISPOSITION
The judgment is affirmed.
We concur WILLHITE, Acting P. J., MANELLA, J.