Opinion
E069421
03-09-2018
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; ANTHONY MOORE, Real Party in Interest.
Michael A. Ramos, District Attorney and Grace B. Parsons, Deputy District Attorney, for Petitioner. No appearance for Respondent. Phyllis K. Morris, Public Defender, Samra Roth-Furbush and William E. Drake, Deputy Public Defenders, for Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB1200464) OPINION ORIGINAL PROCEEDINGS; petition for writ of mandate. Steve Malone, Judge. Petition is granted. Michael A. Ramos, District Attorney and Grace B. Parsons, Deputy District Attorney, for Petitioner. No appearance for Respondent. Phyllis K. Morris, Public Defender, Samra Roth-Furbush and William E. Drake, Deputy Public Defenders, for Real Party in Interest.
In this matter, we have reviewed the petition, the opposition filed by real party in interest (real party), and petitioner's reply. We have determined that resolution of the matter involves the application of settled principles of law, and that the equities favor petitioner. We conclude that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
I
DISCUSSION
"Under California law, '[c]onvicted criminals may be required to pay one or more of three types of restitution.' ([People v. ]Giordano[ (2007)] 42 Cal.4th [644,] 651.) They may be required to pay a restitution fine into the state Restitution Fund, to pay restitution directly to the victim, or to pay restitution as a condition of probation. The statutory requirements vary depending on the type of restitution at issue. (Id. at pp. 651-652.)" (People v. Martinez (2017) 2 Cal.5th 1093, 1100.) Petitioner argues that the victim restitution the trial court ordered in real party's case was based on Penal Code section 1203.1, governing restitution as a term or condition of probation, and that section 1202.4, governing direct victim restitution, does not apply (a separate $300 victim restitution fine was imposed under § 1202.4, subds. (a)-(e), but is not at issue here).
All further statutory references are to the Penal Code, unless otherwise indicated. --------
Real party was arrested on February 8, 2012, for committing fraudulent credit card transactions at a Walmart store where he purchased gift cards with stolen credit cards over five months. Walmart provided spreadsheets of its losses from August 31, 2011, to January 23, 2012, totaling $168,254.87, based on surveillance tapes and business records. Five hundred and forty-six (546) of those transactions were attributed to real party, totaling $127,110.68. Real party was charged on two counts of second degree commercial burglary (§ 459; counts 1, 5); theft (§ 484e, subd. (d); counts 2, 6); identity theft (§ 530.5, subd. (a); counts 3, 7); and grand theft of personal property (§ 487, subd. (a); counts 4, 8). On April 1, 2015, real party pleaded guilty to counts 3 and 4. A probation report included the $127,110.68 restitution amount, to which real party did not object, though he told the probation officer he should only have to repay amounts he actually received and not paid out to others. The trial court sentenced real party on July 2, 2015, to an agreed three-year term of probation, with other terms and conditions specified by number. Among them, term No. 20 was restitution to Walmart in the amount of $127,110.68, plus a 10 percent administration fee, as recommended in the probation report. Real party requested a restitution hearing, which the trial court denied based on real party's plea and the amount documented in the probation report. Again, real party did not object. In 2016, he moved for a correction to the restitution amount (an extra zero in the minute order made the amount over $1.2 million), which was heard by another judge, who made the correction. However, the issue of a restitution hearing arose again and made its way back before Judge Malone, who ordered briefs on jurisdiction to conduct a restitution hearing. Finally, at a hearing on October 20, 2017, Judge Malone reconsidered his earlier denial of a restitution hearing on due process grounds, found that he retained jurisdiction during the term of probation, and granted a restitution hearing in which the petitioner would have the burden of proof to "show how that dollar amount was arrived at and to show the connection that Mr. Moore is somehow criminally responsible for that large number."
Judge Malone did not identify the statute on which he based the restitution at sentencing on July 2, 2015. But, he clearly identified the $127,110.68 restitution as term No. 20 of several enumerated terms and conditions of probation. That places the restitution amount under section 1203.1, terms or conditions of probation, as petitioner contends. The sum includes transactions for which real party was convicted under his plea agreement, as well as transactions in dismissed counts. It also includes amounts that real party argues were shared proceeds with (uncaught) confederates, which he contends he should not have to repay. He argued below, and repeats here, that section 1202.4, governing direct restitution for losses derived only from his convictions, applies, but does not rebut or address the petition's argument as to the effect of section 1203.1.
Under section 1203.1, any challenge real party brings against the restitution amount as a term of probation must be based on changed circumstances with evidence not available at the time of sentencing. (People v. Leiva (2013) 56 Cal.4th 498, 505 [" 'A change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation. As we held in In re Clark (1959) 51 Cal.2d 838, "An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it." (Id. at p. 840, italics added.)' [Citation.]"].) Further, though real party was still entitled to a restitution hearing, the burden would have shifted to real party to refute the documented restitution amount. (People v. Hartley (1984) 163 Cal.App.3d 126, 130 ["Although we hold that the trial court is required to grant a defendant's request for a hearing on the issue of restitution, we do not imply that the requisite hearing approximate the formality of a civil trial. Since a defendant will learn of the amount of restitution recommended when he reviews the probation report prior to sentencing, the defendant bears the burden at the hearing of proving that amount exceeds the replacement or repair cost. At the conclusion of the hearing the trial court must then make an independent judicial determination of the amount of restitution the defendant shall be required to pay based on the available evidence of the replacement or repair cost of the stolen or damaged property."], fn. 3 omitted, bold added.)
The trial court's October 20, 2017 order imposes the burden on petitioner to show a nexus between real party's fraud and Walmart's losses, instead of being on real party to show excessive restitution. But, petitioner has already presented the amount of the victim's loss, supported by documentation and testimony, resulting in a prima facie showing of a $127,110.68 loss. Real party neither objected to that amount, reflected in the probation report, nor to the trial court's denial of a restitution hearing. A grant of the previously denied restitution hearing now should still respect the showing of loss petitioner presented.
Real party's separate argument that petitioner should be estopped from challenging the setting of the restitution hearing because it did not object when the trial court ordered a briefing memorandum on jurisdiction, nor when a prior hearing was set, disregards petitioner's consistent opposition to the issue of a restitution hearing with formal opposition briefs and memoranda.
Accordingly, we have determined that the trial court abused its discretion in placing the burden of proof on petitioner for the intended restitution hearing, and that the petition should be granted.
II
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order of October 20, 2017, in San Bernardino Superior Court case No. FSB1200464, placing the burden of proof on petitioner, and to enter a new and different order placing the burden on real party to prove at the intended restitution hearing that the restitution amount represented in the probation report is excessive.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. MILLER
J.