Opinion
C085481
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. MARK LEBORNE BELISLE, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CR1414)
Defendant Mark Leborne Belisle, Jr., challenges the trial court's imposition of victim restitution in the amount of $22,839. He contends the court improperly excluded the police report at the restitution hearing, and the evidence did not support the amount of restitution awarded. Finding merit in defendant's claims, we will reverse the judgment and remand for further proceedings.
I. BACKGROUND
As stipulated by the parties at defendant's plea hearing, the facts are taken from the Tehama County Sheriff's Office crime report, summarized in the probation report as follows:
On May 29, 2017, defendant drove to a business that was in the process of being remodeled. The contractors were storing their equipment in a locked storage box. Defendant used his own pair of bolt cutters and a hammer to cut open the box and enter it. The business owner, H.S., and his associates interrupted the burglary when they drove up and saw defendant and the codefendant leaving the box. Defendant was carrying a six-pack of beer and a stereo. H.S. and his associates yelled at defendant and the codefendant, who ran to their vehicle. However, H.S. removed the keys from defendant's vehicle preventing him from driving away. Defendant fled, leaving the codefendant behind. A pry bar was discovered at defendant's car, along with the stolen beer, a stereo, and a rechargeable battery. Three syringes and a metal spoon were found inside a box in the codefendant's purse. There was cardboard covering the front and back license plates of defendant's car.
A sheriff's deputy went to defendant's home and spoke with defendant's mother, who was leaving to pick up defendant. The deputy then spoke by phone with defendant, who revealed he was hiding in a field. Defendant was located and found to be in possession of 0.86 grams of methamphetamine. H.S. identified defendant as the person who committed the burglary at his business.
On May 31, 2017, defendant was charged by criminal complaint with burglary (Pen. Code, § 459—count I) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)—count II).
Undesignated statutory references are to the Penal Code.
On June 6, 2017, defendant entered a negotiated plea of guilty to count I in exchange for dismissal of count II.
Over a month after defendant entered his guilty plea, H.S. filed a victim statement and restitution request form that included a request for restitution in the amount of $23,000, and listed various items, including "two radiant point of sale," one Dell computer, one Sony radio, one TV monitor, one Casio calculator, one stapler, and "broken door, locks, ect. [sic]."
On July 17, 2017, the trial court placed defendant on three years of formal probation subject to terms and conditions including 120 days in county jail minus 100 days of presentence custody credit. The court reserved jurisdiction on victim restitution and set the matter for hearing on August 14, 2017.
One month after sentencing, the trial court commenced the victim restitution hearing. Defendant was not present. After confirming defendant was properly noticed and at defense counsel's request, the court commenced the hearing in defendant's absence. The only testimony offered at the hearing was that of H.S., who testified that, as a result of the burglary on May 29, 2017, he suffered financial loss in the approximate amount of $23,000 as follows: $20,000 for replacement of two "Radiant Point of Sale" cash registers; $1,200 to $1,500 for a Dell computer; "maybe $150" for a radio; "around $300" for a TV monitor; $19 for a calculator; $20 for a stapler; and "[a]round $1,000" to repair the door of the storage box. H.S. stated he had not yet replaced any of the items listed.
On cross-examination, H.S. testified as follows:
"[DEFENDANT'S COUNSEL]: You did not report the cash registers stolen in the initial sheriff's report, did you?
"[H.S.]: I sent my list, you know, after they sent me paperwork.
"[DEFENDANT'S COUNSEL]: I'm sorry?
"[H.S.]: I sent my list to them after I received the paperwork from them.
"[DEFENDANT'S COUNSEL]: Okay. And you don't know who stole the cash registers, do you?
"[H.S.]: I don't know. They caught somebody over there.
"[DEFENDANT'S COUNSEL]: 'They caught somebody over there'?
"[H.S.]: They caught somebody, sir, on my—on my property.
"[DEFENDANT'S COUNSEL]: With cash registers?
"[H.S.]: No.
"[DEFENDANT'S COUNSEL]: Where were the cash registers when they were stolen?
"[H.S.]: It's in storage.
"[DEFENDANT'S COUNSEL]: Okay. You also didn't report the computer stolen initially in the initial report?
"[H.S.]: I report everything, sir.
"[DEFENDANT'S COUNSEL]: But I mean, in the initial—when the officer was there on scene?
"[H.S.]: No, they didn't ask me.
"[DEFENDANT'S COUNSEL]: All right. You showed them a radio, a six[-]pack of beer and some bolt cutters; is that correct?
"[H.S.]: That's all that I saw.
"[DEFENDANT'S COUNSEL]: And I'm sorry, there was also a battery? Radio, beer, battery, and bolt cutters; Is that correct?
"[H.S.]: Yes.
"[DEFENDANT'S COUNSEL]: Okay. And, in fact, you had caught someone in the act of carrying those items away?
"[H.S.]: Say that again, please.
"[DEFENDANT'S COUNSEL]: You caught [defendant] in the act of carrying some of those items?
"[H.S.]: No, I didn't caught him.
"[DEFENDANT'S COUNSEL]: But I mean you saw him and he ran off, correct?
"[H.S.]: He ran off the property, yeah, I saw him.
"[DEFENDANT'S COUNSEL]: Okay. But he didn't have cash registers with him, did he?
"[H.S.]: No.
"[DEFENDANT'S COUNSEL]: He didn't have a computer with him?
"[H.S.]: No."
On redirect examination, H.S. testified he checked the storage box every week and, when he last checked it the Tuesday before the burglary, there was no sign of damage. He further testified he received no information that there had been any problems at the storage box between Tuesday and the day of the burglary.
Defendant's counsel requested that the sheriff's report be admitted into evidence, noting the report had been used as a factual basis for the crime. The People objected to use of the police report as evidence in a restitution hearing. The court agreed, finding "it's all hearsay," and denied defendant's request to admit the report after confirming the sheriff's deputy was not present to answers questions related to the report.
Defendant's counsel objected to inclusion of the cash registers and the computer in the order for victim restitution, arguing that if defendant had stolen those items, he "either would have had to carry them with him when he fled the scene or he would have had to leave them at the scene" and, "since neither happened, I think it's clear that those were not stolen by the defendant." Over defense counsel's objection, the court awarded restitution to H.S. in the amount of $22,839.
Defendant filed a timely notice of appeal. He did not request a certificate of probable cause.
II. DISCUSSION
Defendant contends the trial court abused its discretion and violated his due process rights when it imposed victim restitution in the amount of $22,839. He claims the court improperly excluded the police report at the restitution hearing, and the evidence did not support the amount of restitution awarded. We agree.
We note that, while defendant was convicted on his guilty plea and failed to obtain a certificate of probable cause for his appeal, he does not challenge the validity of the plea but instead asserts error in the subsequent probation proceedings. Therefore, his appeal is not precluded under section 1237.5. (See People v. Kaanehe (1977) 19 Cal.3d 1, 8.) --------
"Under California law, '[c]onvicted criminals may be required to pay one or more of three types of restitution.' [Citation.] 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. [Citation.]" (People v. Martinez (2017) 2 Cal.5th 1093, 1100 (Martinez).) "A trial court's power to order restitution in probation cases is . . . broader than its power to order direct victim restitution under section 1202.4 in cases in which the defendant receives a nonprobationary sentence." (Id. at p. 1101.)
"[I]n 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." (§ 1202.4, subd. (f), italics added; see also Cal. Const., art. I, § 28, subd. (b)(13)(B); People v. Mearns (2002) 97 Cal.App.4th 493, 498.) "The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).)
"At the core of the victim restitution statutory scheme is the mandate that a victim who suffers economic loss is entitled to restitution and that the restitution is to be 'based on the amount of loss claimed by the victim.' Thus, a victim seeking restitution . . . initiates the process by identifying the type of loss (§ 1202.4, subd. (f)(3)) he or she has sustained and its monetary value." (People v. Fulton (2003) 109 Cal.App.4th 876, 885-886.) Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. (Id. at p. 886.) "This approach complies with the statutory mandate that the amount of restitution is to be based on the 'loss claimed by the victim' and the designated right of the defendant to a hearing 'to dispute the determination of the amount of restitution.' " (Ibid.)
The court " 'must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.' [Citations.]" (People v. Mearns, supra, 97 Cal.App.4th at p. 498.) The restitution shall, to the extent possible, include compensation for "[f]ull or partial payment for the value of stolen or damaged property," the value of which "shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (§ 1202.4, subd. (f)(3)(A).) " '[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt.' " (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
A trial court's determination of the amount of restitution is reversible only if the appellant demonstrates a clear abuse of discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992 (Thygesen).) "The order must be affirmed if there is a factual and rational basis for the amount. [Citation.]" (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.)
As a preliminary matter, the parties agree that there is split of authority over whether the proper standard of review is abuse of discretion (see People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal); People v. Ortiz (1997) 53 Cal.App.4th 791, 800; People v. Tucker (1995) 37 Cal.App.4th 1, 6) or substantial evidence (see People v. Vournazos (1988) 198 Cal.App.3d 948, 958-959). We agree that "[w]hichever standard of review (or combination thereof) is used makes little practical difference" because "[i]f there is no substantial evidence to support the award, and assuming no other rational explanation, the trial court will have obviously abused its discretion." (Thygesen, supra, 69 Cal.App.4th at p. 993.)
Here, victim H.S. claimed losses in the approximate amount of $23,000, comprised of $20,000 for the two cash registers; $1,200 to $1,500 for the computer; $150 for the radio; $300 for the TV monitor; $19 for the calculator; $20 for the stapler; and $1,000 to repair the door of the storage box. The total amount requested by H.S. was consistent with the amount stated in his victim statement and restitution request form. H.S. further testified that the cash registers were stored in the storage box, that he had last checked the box five days prior to the burglary by defendant and codefendant, and that he had not received any information that the box had been tampered with during that five-day period.
Assuming H.S.'s testimony and his restitution request were sufficient to constitute a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, an issue we discuss below, the burden shifted to defendant to disprove the amount of loss claimed by H.S. (People v. Fulton, supra, 109 Cal.App.4th at p. 886.)
In attempting to disprove H.S.'s claim of loss, defendant's counsel cross-examined H.S., who acknowledged he did not initially report the cash registers or the computer as stolen, he did not see defendant carrying the cash registers or the computer when defendant and codefendant ran from the box, and the only items he showed sheriff's deputies that were left behind by defendant when he fled the scene were the stereo, the beer, the battery, and the bolt cutters. He explained his failure to initially report the disputed items by stating he only reported the beer, stereo, and battery because "[t]hat's all that [he] saw."
However, defendant was prohibited from utilizing the sheriff's report to disprove H.S.'s claimed losses based on the trial court's finding that the report was "all hearsay" and the report's author was not present to testify. The court's refusal to admit the report into evidence is problematic for several reasons. First, defendant pleaded guilty to second degree burglary. The facts upon which defendant based his guilty plea were contained in the sheriff's report pursuant to the parties' stipulation. Therefore, pursuant to the stipulation, the sheriff's report was part of the evidentiary record and was admissible absent some other, proper reason to limit its admissibility or exclude it altogether.
We also note that, in terms of admissibility of the report in general, " ' " '[s]entencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.' [Citation.]" . . . This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.]' [Citations.]" (People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) Thus, the court was free to consider the report notwithstanding any hearsay.
Next, the court's refusal to consider the sheriff's report denied defendant the ability to fully dispute H.S.'s claim of loss as required under section 1202.4, subdivision (f)(1). The sheriff's report, which was not included in the record but was summarized in the probation report, stated defendant broke into the storage box with a hammer and a pair of bolt cutters. The report identified the items stolen from H.S. as a six-pack of beer, a stereo, and a rechargeable battery. According to the summary of the report, defendant fled the scene and left behind his vehicle along with the beer, the stereo, and the battery. He was later apprehended in a field and was not in possession of any of H.S.'s property. As defendant's counsel argued at the hearing, defendant was interrupted in the middle of burglarizing the box and, because he fled on foot, would have had to either drop the disputed stolen items at the car or physically carry them away with him. The disputed items were not found at the car nor was defendant seen carrying those items away. Given this record, it is not reasonable to assume defendant was somehow able to flee the scene while in possession of the two cash registers and the computer without being detected.
The People argue the court could reasonably have inferred from H.S.'s testimony that the cash registers and the computer were safely locked in the storage box before defendant broke into it and were missing after the burglary, and thus there was a rational and factual basis to conclude defendant stole those items. We are not persuaded.
While we recognize that trial courts enjoy broad discretion in ordering restitution, particularly when restitution is a condition of probation, that discretion is not unlimited. (Martinez, supra, 2 Cal.5th at p. 1101; Thygesen, supra, 69 Cal.App.4th at p. 992.) H.S.'s testimony that he did not initially report the cash registers or the computer among the items stolen from the storage box because he did not see them at the time of the burglary is significantly less persuasive in light of the fact that it was not until nearly a month and a half after the burglary and approximately one month after defendant entered his guilty plea that he reported the cash registers and the computer stolen. Given the absence of any mention of these high-value items in the probation report or its summary of the sheriff's report, the late timing of their identification well after defendant's entry of his plea, and H.S.'s admission that the items were neither seen in defendant's possession as he fled nor found at defendant's car left behind at the scene of the burglary, we find their inclusion in the restitution award was not supported by sufficient evidence and therefore arbitrary.
The People also argue it was reasonable for the court to infer that defendant had already stolen the disputed items, carried them away, and returned to the box at the time the burglary for which he was convicted was interrupted. We disagree. As stated previously, the standard of proof at a restitution hearing is by a preponderance of evidence. (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.) There was no evidence, let alone a preponderance of evidence, offered to suggest defendant stole the disputed items first, carried them away, and then returned to the box prior to being discovered. Even assuming there had been, such evidence would necessarily have required a determination by the court as to whether such evidence constituted part of a continuing course of conduct or a new and different crime to which defendant did not plead guilty. No such determination was made.
It is worth noting that the sole basis for defendant's guilty plea was the sheriff's report. The probation department's summary of the sheriff's report did not include the disputed items, the claimed value of which was approximately $22,000 (as opposed to the items identified in the report with a claimed value of under $2,000). The People argue any error in excluding the sheriff's report was harmless because defendant's counsel otherwise impeached H.S. "based on the contents of the report" and the court nonetheless included the claimed value of the cash registers and the computer in the restitution order. Again, we are not persuaded. As defendant aptly notes, the parties stipulated to the sheriff's report that contained additional facts outside the scope of H.S.'s testimony, such as what sheriff's deputies found after searching defendant's car and what was or was not in defendant's possession when defendant was apprehended in the field. Because defendant bore the burden of disputing H.S.'s claimed losses, defendant should have been allowed to use the sheriff's report to challenge H.S.'s testimonial and documentary evidence and to present evidence of his own.
Finally, the People argue that where, as here, restitution was ordered as a condition of probation, the trial court had broad discretion to order restitution in a manner that would require defendant to "make amends '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 [defendant].' " (Carbajal, supra, 10 Cal.4th at p. 1126; accord Martinez, supra, 2 Cal.5th at p. 1101.) Accordingly, the only question is "whether the order is reasonably related to the crime of which the defendant was convicted or to future criminality." (In re I.M. (2005) 125 Cal.App.4th 1195, 1210.) Again, a trial court's discretion in so imposing probation conditions "although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in [section 1203.1]." (Carbajal, at p. 1121.) As previously discussed, based only on H.S.'s unsubstantiated claim of loss made well after entry of defendant's plea, any relationship between the nearly $22,000 portion of the restitution award and defendant's crime is simply too tenuous to "serve the purposes of rehabilitating the offender and deterring future criminality." (Id. at p. 1119.)
We conclude the trial court erred in denying defendant's request to consider the sheriff's report, thereby preventing defendant from fully bearing his burden to dispute H.S.'s claimed losses. We remand for further proceedings to determine the proper amount of victim restitution.
III. DISPOSITION
The judgment is reversed and the matter remanded to the trial court for further limited proceedings to determine victim restitution.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HULL, J.