Opinion
D072630
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER CLONINGER, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Beccera, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Christine Bergman and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN356501-3) APPEAL from an order of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Beccera, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Christine Bergman and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
Christopher Cloninger pled guilty to being an accessory after the fact to murder (Pen. Code, § 32), and the court sentenced him to formal probation. Among other terms and conditions, it required Cloninger to pay the murder victim's funeral expenses as restitution under section 1203.1. Cloninger argues the court abused its discretion because the restitution order does not reasonably relate to his crime or serve a deterrent purpose. We disagree on both points and affirm.
Further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2017, Cloninger pled guilty to being an accessory after the fact (§ 32). The underlying felony was a homicide. Cloninger admitted he "attempted to conceal evidence of a crime - knowing a felony had taken place - with the intent that the perpetrator evade arrest." The trial court accepted Cloninger's plea.
The probation department recommended formal probation, including a condition requiring Cloninger to pay victim restitution of $5,752 to cover the murder victim's funeral expenses. Defense counsel objected to the restitution condition at sentencing, arguing there was no sufficient nexus between Cloninger's conduct and the restitution order. In placing Cloninger on formal probation, the court ordered him to pay full victim restitution. It set a contested hearing to determine the restitution amount.
At the contested restitution hearing, no witnesses testified and the court heard argument from both sides. Citing In re I.M. (2005) 125 Cal.App.4th 1195 (I.M.), the prosecution argued that ordering Cloninger to pay the victim's funeral expenses would help his rehabilitation. Defense counsel agreed that I.M. was the key authority but distinguished it on the ground that Cloninger had no gang affiliations. Counsel argued I.M. set the "yardstick" for where restitution might be appropriate and was not met here.
In I.M., discussed below, the court upheld a probation condition requiring a juvenile found to have acted as an accessory after the fact to pay the murder victim's funeral expenses. (I.M., supra, 125 Cal.App.4th at pp. 1208-1210.)
The court ordered restitution as a condition of Cloninger's probation based on the admitted factual basis for his plea. Cloninger admitted to concealing evidence at the crime scene with the intent to help the perpetrator evade arrest for a homicide. The court believed there was enough of a connection to the underlying offense that Cloninger should be held responsible for the burial costs. Accordingly, it ordered him jointly and severally liable with one of his codefendants to reimburse $5,752 for funeral expenses paid by the state.
DISCUSSION
Cloninger appeals the restitution order. He argues, as he did below, that he should not be liable for the victim's funeral expenses because he did not commit the murder, and the restitution order is not reasonably related to deterring future criminality. He acknowledges victim restitution conditions have been upheld in People v. Carbajal (1995) 10 Cal.4th 1114 (Carbajal) and I.M., supra, 125 Cal.App.4th at page 1195. But he argues the facts are distinguishable here and warrant a different result. Citing the same authorities, the People argue the court acted within its broad discretion because the restitution order reasonably related to the crime and to deterring future criminality. As we explain, the People have the better argument.
The court ordered victim restitution pursuant to section 1203.1. That statute "gives trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety." (People v. Anderson (2010) 50 Cal.4th 19, 26 (Anderson).) "Restitution has long been considered a valid condition of probation." (Carbajal, supra, 10 Cal.4th at p. 1121.) Section 1203.1, subdivision (b) requires courts to consider whether to order restitution to the victim or the Restitution Fund as a condition of probation. A court must "provide for restitution in proper cases." (Id., subd. (a)(3).)
A sentencing court's discretion to order restitution is "necessarily broader" in the probation context than it is in the prison context under section 1202.4. (Anderson, supra, 50 Cal.4th at p. 29.) "California courts have long interpreted the trial courts' discretion [under section 1203.1] 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." (Carbajal, supra, 10 Cal.4th at p. 1121.) "There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action." (Anderson, supra, at p. 27.) Section 1202.4, by contrast, "limits the scope of victim restitution to the operative crime that resulted in the loss." (People v. Woods (2008) 161 Cal.App.4th 1045, 1052 [reversing restitution order under section 1202.4 as to defendant convicted of violating section 32].)
Section 1202.4 has its roots in the "Victims' Bill of Rights" (Proposition 8), enacted in 1982, which added article I, section 28 to the California Constitution. (Anderson, supra, 50 Cal.4th at p. 27 [tracing differences between § 1203.1 and § 1202.4].) Except under certain exceptions, "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." (§ 1202.4, subd. (f).)
Because probation is a privilege, not a right, the court has broad discretion to impose probation conditions so long as they are not invalid under the criteria listed in People v. Lent (1975) 15 Cal.3d 481, 486 (Lent). (Anderson, supra, 50 Cal.4th at p. 32.) The defendant remains free to refuse probation if he or she feels its terms are harsher than the sentence for the substantive offense. (Ibid.) Under Lent, " '[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 . . . ." ' " (Anderson, at p. 32., italics added, citing Lent, at p. 486.)
Incidentally, Lent involved a probation condition that required a defendant convicted of grand theft to pay victim restitution of funds allegedly taken. (Lent, supra, 15 Cal.3d at p. 483.) The court upheld the restitution order both as to the count on which the defendant was convicted and the count on which he was acquitted. (Id. at p. 486.) --------
Our task on appeal is to "determine whether the restitution order, as a condition of probation, is arbitrary or capricious or otherwise exceeds the bounds of reason under the circumstances." (Anderson, supra, 50 Cal.4th at p. 32.) In evaluating the Lent criteria, we consider whether the restitution condition serves a valid purpose under section 1203.1. (Carbajal, supra, 10 Cal.4th at pp. 1121-1124; see Anderson, supra, at p. 31 [" 'a condition of probation must serve a purpose specified in [section 1203.1]' "].) Specifically, section 1203.1 allows
"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 . . . ." (Id., subd. (j).)
The parties agree on the facts and key authorities. Those authorities direct our inquiry to whether the restitution condition is reasonably related to either Cloninger's crime or to deterring future criminality. (Carbajal, supra, 10 Cal.4th at p. 1123; I.M., supra, 125 Cal.App.4th at p. 1209.) Following that approach, we conclude the trial court acted well within its broad discretion in ordering victim restitution as a condition of probation.
Carbajal upheld a probation condition that required victim restitution for property damage following a felony hit-and-run conviction. (Carbajal, supra, 10 Cal.4th at p. 1123.) The court found the condition to be reasonably related to the crime of leaving the scene of an accident. (Id. at p. 1124.) By leaving the scene, the driver thwarted the policy goal of adjudicating responsibility "in an orderly way according to the rules of law." (Ibid.) Through his actions, the defendant imposed "a real, economic loss, not just an abstract affront" on "every law-abiding driver in the form of increased insurance premiums." (Ibid.) Any "lack of a precise fit between the costs of the crime and the amount of restitution ordered [did] not render the restitution order invalid," because the condition addressed the social costs of the defendant's conduct. (Ibid.)
A similar conclusion can be reached here. Cloninger aided a principal knowing that person committed a felony and intending to help him or her avoid capture, conviction, or punishment. (People v. Nuckles (2013) 56 Cal.4th 601, 612; § 32.) An accessory's actions "lessen the chance that the perpetrators will be captured and held accountable for their crimes." (People v. Cooper (1991) 53 Cal.3d 1158, 1168.) The cost of such action is born by society at large in a manner analogous to Carbajal. (Carbajal, supra, 10 Cal.4th at p. 1124.) "That [Cloninger] was not personally or immediately responsible for the victim's loss does not render an order of restitution [as a condition of probation] improper." (I.M., supra, 125 Cal.App.4th at p. 1209.)
Carbajal also upheld the restitution condition on the ground it was reasonably related to deterring future criminality. (Carbajal, supra, 10 Cal.4th at p. 1124.) The condition forced the hit-and-run driver "to accept the responsibility he attempted to evade," "correct the behavior leading to his conviction," and deter "future attempts to evade his legal and financial duties as a motorist." (Ibid.) Conditioning probation on victim restitution would thus serve the rehabilitative purpose specified in section 1203.1. (Carbajal, at p. 1125.)
Applying Carbajal to facts that closely parallel ours, I.M. concluded that a victim restitution condition served a valid rehabilitative purpose. (§ 1203.1, subd. (j).) The defendant was an accessory after the fact to a murder, and the juvenile court ordered him to pay the victim's funeral expenses as a condition of his probation. (I.M., supra, 125 Cal.App.4th at p. 1208.) The defendant argued the restitution order served no rehabilitative purpose because the victim's loss was attributable to his codefendant's conduct, not his own. (Ibid.) The court disagreed. Citing Carbajal, it concluded that restitution would "serve[] a rehabilitative purpose by bringing home to the defendant the consequences of his gang membership" and make him "share responsibility for the gang-related activities in which he in some way participated." (I.M., at p. 1210; Carbajal, supra, 10 Cal.4th at p. 1126.) Additionally, the condition would force the minor "to face the emotional and financial effects of gang-related activity on the family of the victim." (I.M., at p. 1210.)
The same is true here. Requiring Cloninger to pay victim restitution forces him to face the consequences of his criminal behavior. As in I.M., Cloninger made a conscious choice to help his codefendants clear a crime scene to help them evade arrest. Cloninger argues I.M. turned entirely on the juvenile's gang affiliations, which are not present here. We do not read the case so narrowly. As the People argue, by cleaning a murder scene to help his codefendants escape, Cloninger "demonstrated an absolute loyalty characterized by a complete disregard for the law." Like the defendant in I.M., Cloninger sought to protect his codefendants irrespective of the costs his actions imposed on society. (I.M., supra, 125 Cal.App.4th at p. 1210.) The fact that I.M. was a member of an established gang, whereas Cloninger was only assisting less formally organized associates, does not sufficiently distinguish the relationship between the defendant's actions and the costs associated with the murder.
Indeed, the trial court carefully considered the facts underlying Cloninger's conviction in ordering restitution. Cloninger saw a dead body in his codefendant's home and knew the nature of the felony committed when he provided assistance. The court reasoned it might have reached a different result had Cloninger run into his codefendants on the road and given them a ride knowing merely that some felony had been committed. But "[t]his was more than that. There was some active involvement in . . . cleaning up the scene and assisting the main perpetrators in avoiding arrest."
Cloninger suggests that upholding the restitution order on appeal "would permit the imposition of any probation condition that might act as any type of deterrent or have any rehabilitative effect, regardless of a defendant's individual facts and circumstances." To the contrary, however, the court's order in this case was tailored to his individual culpability. The facts are not in dispute. The victim was found in a seated position in a garage with multiple gunshot wounds to the face, chest, abdomen, and legs. A single bullet casing was recovered from the scene, leading law enforcement to believe someone had removed other casings. Cloninger admitted seeing the body in the garage, and surveillance footage showed him entering and leaving after the murder to place big duffel bags in his car. Even if he did not fire the fatal shots, the court reasonably found his conduct to be sufficiently tied to the murder to hold him responsible for the victim's funeral expenses.
Our result is unchanged by Cloninger's unopposed request for judicial notice. He seeks judicial notice that (1) all charges against codefendant Tyann Allen (the only one charged with murder) were dismissed, and (2) codefendant Allen Boles received only a 16-month term. In Cloninger's view, these facts demonstrate that requiring him to pay restitution as a condition of probation is "disproportionate" to his culpability. We are not persuaded. In ordering restitution, the court carefully considered Cloninger's admitted role as an accessory after the fact. It found the condition appropriate based on his criminal behavior. Regardless of how his codefendants fared, there was no abuse of discretion. Accordingly, Cloninger's request for judicial notice is denied. (People v. Blount (2009) 175 Cal.App.4th 992, 995, fn. 2 [denying judicial notice as to matters irrelevant to appeal].)
In short, the court acted within its broad discretion when it ordered Cloninger to bear joint and several responsibility for the murder victim's burial costs, as a condition of his probation. Based on the record, the court reasonably found that the restitution order related to his crime and would deter future criminality.
DISPOSITION
The restitution order is affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.