Opinion
B325689
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LAURITZ EDLEFSEN, Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General and David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. SA104897, Lauren Weis Birnstein, Judge.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General and David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
PERLUSS, P. J.
After being charged with discharge of a firearm with gross negligence (Pen. Code, § 246.3, subd. (a)), possession of a firearm with a specified misdemeanor conviction (knowing violation of a protective order) (§ 29805, subd. (a)) and misdemeanor assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), Robert Lauritz Edlefsen pleaded no contest to the felony firearm possession charge and admitted the prior conviction. Pursuant to a negotiated agreement the other charges were dismissed; and the court suspended imposition of sentence and placed Edlefsen on two years formal probation with various conditions, including that Edlefsen make restitution pursuant to section 1202.4 to any victim in an amount to be determined at a hearing. Edlefsen entered into a "Harvey waiver" regarding restitution for any dismissed counts.
Statutory references are to this code.
"Where the parties anticipate the trial court will consider the facts underlying a dismissed count when sentencing, it is now routine procedure for the prosecutor to extract what is known as a 'Harvey waiver' from the pleading defendant." (K.R. v. Superior Court (2017) 3 Cal.5th 295, 304; see § 1192.3, subd. (b) ["[i]f restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, as described in this section, the court shall obtain a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 from the defendant as to the dismissed count"].)
Following a restitution hearing Edlefsen was ordered to pay to Charlton Hudson, a resident of the neighborhood in which Edlefsen's firearm offenses occurred and a witness to the crimes, $3,324.16 as restitution-the costs of a new security fence Hudson installed around his property and an upgraded home security system plus the estimated costs of repairing Hudson's car that Edlefsen had allegedly damaged during the episode. On appeal, as he did at the restitution hearing, Edlefsen argues Hudson was not entitled to restitution because he was not a direct victim of any of the charged offenses, as required by section 1202.4, and did not suffer any losses because of Edlefsen's criminal conduct. We affirm the restitution order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Edlefsen's Conduct Outside Hudson's Home
The prosecutor at the restitution hearing provided an overview of the episode on July 1, 2021 that led to the two firearms-related charges: "Mr. Edlefsen lived in the same neighborhood as the neighbors and the people who were victimized here.... There were multiple neighbors who witnessed the threats and the general behavior of Mr. Edlefsen. And the way that it was characterized to me was sort of terrorizing the neighborhood with his outbursts and throwing rocks and waving a gun around."
The misdemeanor assault allegedly took place on July 17, 2021, did not involve Hudson and was unrelated to the incident underlying the restitution order.
The prosecutor had earlier advised the court that there were several victims entitled to restitution but Hudson was the only one who had returned a restitution request.
The court thereafter summarized in part and quoted in part from Hudson's preliminary hearing testimony concerning Edlefsen's conduct that morning. "[Hudson] said he woke at around 4:00 in the morning to loud screaming-a male screaming, and he looked-he wanted to get an understanding of what the threat nature was 'outside of my house' .... And he observed Mr. Edlefsen just outside-just beyond the back of his minivan. '[Edlefsen] had a revolver pistol in the air. He was screaming for me to come outside. He then proceeded to walk towards the bushes as he was rounding the minivan and came into the carport as he approached the entrance to the carport and disappeared from my field of vision. I witnessed him personally swinging the gun toward that door, and that was all I needed. I hit the deck. I grabbed my children. I moved them to a secure place.'"
According to the court, Hudson estimated Edlefsen was 20 to 25 feet from him; and Hudson said he could see the barrel of the gun pointing toward him. Hudson then testified, "'I continued to hear Mr. Edlefsen call me out, continued to scream and yell about some form of emergency. Then I began to hear loud banging that I had heard earlier that woke me up. It was incredibly terrifying. At this point, my wife and I are on the phone with 911 explaining to them that I had seen a person with a gun on my property approaching my front door with the barrel pointed at the door.'"
2. Hudson's Claim for Restitution
Testifying at the restitution hearing Hudson stated he believed he was entitled to restitution for "the expenses that my family personally undertook from July 1st of 2021 after [Edlefsen's] violent and aggressive outburst against my family and my property." Hudson explained he installed a six-foot-high lockable security fence "to prevent Mr. Edlefsen from being able to have access to my backyard" at a cost of $1,200. In addition, Hudson upgraded his security system, "my camera system specifically, with a microphone, because police continued to ask me for better evidence of Mr. Edlefsen's ongoing death threats." The third item Hudson claimed (estimated at $1,300) was "for dents along the hood of my car-in a line along the hood of my car where Mr. Edlefsen banged his fists into my car the night of July 1st when he was trying to create a disturbance to bait me and other neighbors to come outside when he was brandishing and throwing a revolver all around."
3. Counsel's Arguments and the Court's Ruling
Edlefsen's counsel argued Hudson was not entitled to restitution under section 1202.4 because he was not a named victim of the felony firearm-possession offense for which Edlefsen had been found guilty or the dismissed negligent discharge charge that had also allegedly taken place on July 1, 2021 and had not suffered any direct loss as a result of the charged criminal conduct. Rather, counsel asserted, Edlefsen was a witness and, as such, not within the scope of the restitution statute.
It was undisputed that Edlefsen's prior conviction for knowingly violating a protective order, which elevated the possession charge to a felony, did not involve Hudson.
Defense counsel emphasized that Edlefsen had not been charged with vandalism and Hudson had a remedy in small claims court for any damage that may have been caused by Edlefsen's pounding with his fists on Hudson's car. In addition, counsel pointed out that section 1202.4, subdivision (f)(3)(J), provided that expenses incurred by victims to install or increase residential security, including a home security system, were authorized as restitution for violations of section 273.5 (willful infliction of corporal injury on a spouse or cohabitant or former spouse or cohabitant) and violent felonies as defined in section 667, subdivision (c), which were not crimes involved in this case.
The prosecutor insisted Hudson was a victim of Edlefsen's conduct on July 1, 2021, which included additional offenses (trespassing and vandalism) that could have been (and, in that prosecutor's view, should have been) charged. Because Hudson testified to this aspect of Edlefsen's misconduct at the preliminary hearing, the prosecutor asserted, Edlefsen was on notice of the potential charges. And, she continued, the pre-plea report written by the probation officer indicated Hudson was a victim.
When defense counsel complained, referring to the Sixth Amendment, that her client was entitled to know what he was being charged with and what he might be responsible for, the court asked if Edlefsen wanted to withdraw his plea. Counsel responded, "No, Your Honor. That's not fair. We're talking about restitution and whether someone is entitled to get it. And this is where the argument is."
The court found Hudson was a victim-"a direct recipient of a threat by the use of the firearm for which the defendant was convicted. He was present within feet of this firearm." Accordingly, the court ruled, he was entitled to "put[] up a higher degree of security."
Edlefsen filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard for Review
Section 1202.4, subdivision (a)(1), states, "It is the intent of the Legislature that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime." And subdivision (a)(3) provides, "The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay . . . [¶] . . . [¶] (B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment."
Section 1202.4, subdivision (f), in turn, requires the superior court to order the defendant "in every case in which a victim has suffered economic loss as a result of the defendant's conduct . . . [to] 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." Pursuant to subdivision (f)(3) the restitution order "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendant's criminal conduct," including (but not limited to), "[f]ull or partial payment for the value of stolen or damaged property" (§ 1202.4, subd. (f)(3)(A)) and "[e]xpenses to install or increase residential security incurred related to a violation of Section 273.5, or a violent felony as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks." (§ 1202.4, subd. (f)(3)(J).)
Section 1202.4, subdivision (l), provides, "In every case in which the defendant is granted probation, the court shall make the payment of restitution fines and orders imposed pursuant to this section a condition of probation." Section 1203.1, which concerns court-ordered probation, similarly provides in subdivision (a)(3) that the court "shall provide for restitution in proper cases," and more generally authorizes the court in subdivision (j) to "impose and require any or all of the terms of imprisonment, fine, and conditions specified in this section, and other 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."
"In both sections 1203.1 and 1202.4, restitution serves the purposes of both criminal rehabilitation and victim compensation. But the statutory schemes treat those goals differently. When section 1202.4 imposes its mandatory requirements in favor of a victim's right to restitution, the statute is explicit and narrow. When 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 encourage a defendant's reformation as the circumstances of his or her case require." (People v. Anderson (2010) 50 Cal.4th 19, 29 (Anderson); accord, People v. Czirban (2022) 77 Cal.App.5th 1050, 1063; see People v. Martinez (2017) 2 Cal.5th 1093, 1101 ["[a] trial court's power to order restitution in probation cases is thus broader than its power to order direct victim restitution under section 1202.4 in cases in which the defendant receives a nonprobationary sentence"].)
We review conditions of probation for abuse of discretion. (In re Ricardo P. (2019) 7 Cal.5th 1113, 1118; People v. Moran (2016) 1 Cal.5th 398, 403.) Specifically, we review a probation condition "for an indication that the condition is 'arbitrary or capricious' or otherwise exceeds the bounds of reason under the circumstances." (People v. Olguin (2008) 45 Cal.4th 375, 384.) However, a restitution order that is not authorized by governing law or that rests upon a "demonstrable error of law" constitutes an abuse of the court's discretion." (People v. Czirban, supra, 77 Cal.App.5th at p. 1065 [cleaned up].)
3. The Probation Condition Ordering Restitution to Hudson Fell Within the Trial Court's Broad Discretion Under Section 1203.1
Implicitly recognizing the restitution order imposed in this case as a condition of probation must be assessed under section 1203.1, not section 1202.4, in his reply brief Edlefsen argues, "Even in the probation context where the court has broad discretion to impose conditions of probation[ ], there has to be a showing that the victim's economic loss was related to the admitted criminal conduct," citing People v. Lent (1975) 15 Cal.3d 481, 487. Edlefsen's summary of the key Lent holding is not quite right. In fact, the Supreme Court held restitution as a condition of probation "must relate to past or future criminal conduct" (ibid.) and explained more generally 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.'" (Id. at p. 486.)
Thirty-five years after Lent the Supreme Court in Anderson, supra, 50 Cal.4th at page 32 reiterated that the "three Lent criteria" applied to determine whether a restitution order as a condition of probation was arbitrary, capricious or otherwise exceeded the bounds of reason under the circumstances. (See generally People v. Bryant (2021) 11 Cal.5th 976, 983-984 ["Lent contemplates a case-by-case assessment taking into account the relationship between the offender's crime, the terms of the challenged condition, and its relation to the probationer's future criminality. A condition will not be invalidated as unreasonable unless all three of Lent's criteria are satisfied"].)
Although Hudson was arguably not the immediate victim of Edlefsen's criminal conduct and the expenses for which he will be reimbursed through the restitution order were not directly caused by that conduct, the order does not run afoul of the Lent criteria. Hudson testified Edlefsen had been making loud noises and banging his fists into Hudson's car to bait him, as well as other neighbors, to come outside where Edlefsen was brandishing a firearm. The security measures Hudson took as a result of that conduct, as well as the need to repair the dents in his car, were all reasonably related to Edlefsen's criminal conduct. And the order was certainly not based on Edlefsen's legal behavior, nor does it forbid any legal conduct by Edlefsen (or any future conduct of any sort).
The Supreme Court in Anderson, supra, 50 Cal.4th at page 27 explained that, while restitution under section 1203.1 may serve to compensate the victim of a crime, "it also addresses the broader probationary goal of rehabilitating the defendant. '"Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused."'" (Accord, People v. Carbajal (1995) 10 Cal.4th 1114, 1121 ["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"].) The restitution order here properly served that statutory goal.
DISPOSITION
The restitution order is affirmed.
We concur: FEUER, J. EVENSON, J. [*]
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.