Opinion
E050973
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. READELL GARDNER III, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Michael T. Murphy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FBA900610)
OPINION
APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed in part, reversed in part with directions.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
In a felony complaint filed on October 13, 2009, defendant Readell Gardner III was charged with failing to disclose the origin of a recording. (Pen. Code, § 653w, subd. (a).) He moved to suppress the prosecution's evidence against him pursuant to section 1538.5. In conjunction with the preliminary hearing, the trial court heard evidence and argument on the motion, which was denied. On November 23, 2009, an information was filed charging defendant with the same violation contained in the complaint. On April 23, 2010, defendant pled guilty to the charge. According to the plea agreement, the court sentenced defendant to a determinate term of two years, to be served concurrently with a 16-month prison sentence in another case. The court further ordered that defendant pay restitution, pursuant to section 1202.4, to the Recording Industry Association of America (RIAA) in the amount of $5,998.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant challenges (1) the denial of his motion to suppress evidence, and (2) the amount of the restitution.
I. PROCEDURAL BACKGROUND AND FACTS
Defendant moved, under section 1538.5, to suppress all tangible and intangible evidence obtained by police officers from their encounter with him on October 9, 2009, on the ground that the officers' warrantless search was illegal and unreasonable under the Fourth Amendment because there was no probable cause to detain and search him. The prosecution opposed the motion, arguing that (1) defendant was on felony probation with search terms, and (2) new criminal activity was suspected to justify the prolonged detention.
The following facts are derived from the transcript of the preliminary/suppression hearing: On October 9, 2009, at approximately 8:30 p.m., Barstow Police Officer Thomas Gates saw defendant and Irvin Natute sprinting across Main Street outside the crosswalk. Officer Gates decided to contact them. As he was pulling up next to Natute, he radioed for Officer Andrew Buesa to stop defendant. Natute threw a small baggie of marijuana on the ground behind him, which Officer Gates recovered. Natute was placed in the back of the patrol car. Officer Gates drove to where Officer Buesa had stopped defendant.
After obtaining defendant's name, Officer Buesa provided it to dispatch, and dispatch informed the officer that defendant was on felony probation. Officer Buesa asked defendant if he had "search terms," and defendant replied that he did. Officer Buesa searched defendant and found several air fresheners in his pockets. The officer suspected they were stolen from a nearby discount store, because defendant had no bag or receipt.
When Officer Gates met up with Officer Buesa, he learned that defendant was on felony probation; however, Officer Buesa did not specifically mention that defendant was subject to "search terms." Officer Buesa informed Officer Gates of what he had found on defendant's person. Both officers then went to the discount store but were unable to confirm or deny that defendant had stolen the air fresheners.
Officer Gates asked Natute if he knew defendant. Natute said he did not know defendant, and that defendant had simply approached him on the street and asked if he wanted to buy some compact discs (CD's) or DVD's. Officer Gates cited Natute for possession of marijuana and released him. During this time, Corporal Bledsoe arrived at the scene and provided Officer Gates with additional information about defendant.Based on that information and the fact that Natute said defendant had offered to sell him CD's or DVD's, Officer Gates decided to conduct a "probation compliance check" at defendant's residence. Officers Gates and Buesa went to defendant's home. Officer Buesa stood next to Officer Gates as he knocked on the door, acting as a "guarding officer." Officer Buesa left the residence after several minutes and did not go inside with Officer Gates during the search.
Defense counsel objected to Officer Gates's testimony that "[Corporal] Bledsoe advised me that a day prior to this day he had received a call for service at the [discount s]tore regarding a male selling DVDs . . . ." The trial court sustained the objection on hearsay grounds, and granted the move to strike the testimony. The trial court's ruling was in error. The evidence was proper to show Officer Gates's state of mind and why he searched defendant's home.
Inside of defendant's locked bedroom, Officer Gates found, among other things, more than 100 CD's and/or DVD's that appeared to have been copied by defendant. They did not disclose who produced the work. Defendant later admitted that he intended to sell the discs.
II. DENIAL OF DEFENDANT'S MOTION TO SUPPRESS
Defendant argues the trial court erred in denying his motion to suppress evidence, because the police officers violated his Fourth Amendment right against unreasonable searches and seizures when they searched his bedroom without knowledge of whether defendant had search terms. The People respond that defendant waived his right to appeal the denial of the suppression motion as a provision of his plea agreement. We conclude defendant has waived his right to appeal the denial of his motion to suppress evidence.
"[A]n express waiver of the right of appeal made pursuant to a negotiated plea agreement is valid provided defendant's waiver is knowing, intelligent and voluntary." (People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 [Fourth Dist., Div. Two].) "The voluntariness of a waiver is a question of law which we review de novo. [Citation.] To make this determination, we examine the particular facts and circumstances surrounding the case, including the defendant's background, experience and conduct. [Citation.]" (Id. at p. 1660.)
In its consideration of the particular facts, a trial court is entitled to rely on a properly executed written waiver of the right to appeal. A written form that includes a waiver of the right to appeal is sufficient if the defendant signed it "upon competent advice of his attorney" and the court determined defendant read the form, understood the contents, and discussed the contents with his attorney. (People v. Castrillon (1991) 227 Cal.App.3d 718, 722.)
Defendant complains that during his change of plea hearing, the trial court did not orally advise him he had a right to appeal and was waiving it as part of the plea agreement. To be valid, it is not necessary for the court to specifically admonish defendant about the right of appeal. Rather, we look to the record as a whole to determine whether a waiver of appeal was voluntary and knowing. (People v. Panizzon (1996) 13 Cal.4th 68, 80-83.) In Panizzon, the defendant signed a change of plea form waiving his "right to appeal from the sentence" he agreed to as part of the plea agreement. (Id. at pp. 80-82.) The defense attorney also signed the form stating he went over it with the defendant, explained the content of the form to him, concurred in the decision to enter the plea, and observed the defendant read and sign the form. (Id. at p. 82.) At a change of plea hearing, the defendant affirmed his initials and signature on the form, said he had had time to review the form with his attorney, and acknowledged the agreed sentence. Likewise, the defendant's attorney acknowledged his signature on the form and told the court he believed the defendant was knowingly and intelligently giving up his rights. Based on this evidence, the trial court found the plea was knowing and voluntary. (Id. at pp. 82-83.) On appeal, the defendant argued the record did not show a valid waiver of his right to appeal the sentence because the court did not specifically admonish him of the right. (Id. at p. 83.) Our Supreme Court rejected the argument, stating: "[W]e are satisfied that defendant's waiver of the right to appeal the bargained sentence was knowing, intelligent, and voluntary despite the absence of a specific admonishment by the trial court." (Id. at p. 84.)
As defendant acknowledges, under similar circumstances, courts have found a valid waiver of the statutory right to appeal a motion to suppress evidence. (People v. Berkowitz (1995) 34 Cal.App.4th 671, 677.) Even if it is not specifically mentioned, a general waiver of the right to appeal includes a waiver of the right to appeal the denial of a suppression motion. (People v. Kelly (1994) 22 Cal.App.4th 533.) In Kelly, the defendant signed a change of plea form stating he understood that as a condition of his plea he was giving up "'any direct appeal'" except any appeal of "'sentencing error.'" (Id. at pp. 534-535.) The form stated the defendant and his attorney had read and discussed the terms, as well as the consequences of the plea, and the defendant understood them. (Id. at p. 535.) At a change of plea hearing, the defendant told the court he read and signed the form and was entering the plea "'freely [and] voluntarily.'" (Ibid.)On appeal, the defendant challenged the denial of his motion to suppress evidence. He argued he was entitled to a decision on the merits, because the form did not specifically mention a waiver of the right to appeal the suppression motion, and the court had not specifically admonished him he was giving up this right at the change of plea hearing. (Ibid.) The appellate court disagreed, concluding the waiver was valid and the merits of the suppression motion were not cognizable on appeal. (Id. at p. 536.)
The record in this case shows defendant signed and initialed a change of plea form stating: "I waive and give up any right to appeal from any motion I may have brought or could bring and from the conviction and judgment in my case since I am getting the benefit of my plea bargain." However, in handwriting, next to this paragraph, someone wrote: "Except to challenge [the] constitutionality of restitution statute as noted in narrative." Defendant also indicated on the form he had sufficient time to consult with his attorney and to consider the meaning of each statement on the form. He further indicated he understood all of the terms. In addition, defendant's attorney signed the form stating he personally read and explained the contents of the form to defendant, personally observed defendant sign the form, and concurred in the decision to enter the plea.
At the change of plea hearing, the court confirmed defendant signed, initialed, and understood the form, as well as the consequences of the plea. The court also made sure defendant had enough time to go over the form with his attorney.
Based on the foregoing, we conclude defendant voluntarily and knowingly waived his right to appeal, including the right to appeal the denial of his suppression motion. In reaching our conclusion, we reject defendant's contention the waiver he agreed to in his change of plea form is invalid because "nothing in [his] oral or written waiver suggests that he knowingly waived his right to appeal pursuant to Penal Code section 1538.5." In our view, the waiver is broadly worded to include whatever appellate rights defendant had on a direct appeal. However, defendant specifically reserved his right "to challenge [the] constitutionality of restitution statute as noted in narrative." Given such specific reservation, it is simply untenable that defendant did not understand he was relinquishing his right to challenge the denial of his suppression motion. At the lower court, defense counsel stated: "[Defendant] was found with DVD CDs. Those CDs, they claim, were pirated, and he's admitting that by the plea. Those were confiscated and destroyed. The code section states we can take the value that they were, even though they were destroyed, and set restitution to the company based on their value that they could be. But they've been destroyed. So he's paying a potential restitution rather than actual restitution. [¶] I have a problem with that, so I was gonna appeal that issue, and it's only that issue. That's all." (Italics added.) We therefore cannot reach the merits of defendant's contention that his suppression motion was erroneously denied by the trial court.
III. RESTITUTION UNDER SECTION 1202.4, SUBDIVISION (r)
As a term of defendant's plea bargain, he agreed that restitution should be fixed at $5,998 but reserved the right to challenge the statute that authorized the restitution at the time of sentencing, and later on appeal. The amount of the restitution was calculated by totaling the average wholesale value of legitimate versions of the CD's and DVD's found in defendant's possession, plus $120 for investigation costs. At sentencing, defense counsel claimed that section 1202.4, subdivision (r), which was the authority for the restitution order, was unconstitutional because it allowed reimbursement to a victim who suffered no actual loss. The court rejected the argument and ordered restitution paid to the RIAA. On appeal, defendant contends that "requiring [him] to pay $5,998 restitution, based on a 'potential loss' theory, violated his state and federal constitutional right to due process of law." (Capitalization & bolding omitted.) Specifically, he argues that his "liability cannot be based on the number of CD's and DVD's in his possession; it could only be logically based on the number sold."
Section 1202.4 allows the trial court to order a defendant to pay restitution to a victim "who incurs any economic loss as a result of the commission of a crime . . . ." (§ 1202.4, subd. (a)(1).) Section 1202.4, subdivision (r)(1), in relevant part, provides: "In addition to any other penalty or fine, the court shall order any person who has been convicted of any violation of Section . . . 653w . . . that involves a recording or audiovisual work to make restitution to any . . . trade association acting on behalf of the owner or lawful producer, of a phonograph record, disc, wire, tape, film, or other device or article from which sounds or visual images are derived that suffered economic loss resulting from the violation. For the purpose of calculating restitution, the value of each nonconforming article or device shall be based on the aggregate wholesale value of lawfully manufactured and authorized devices or articles from which sounds or visual images are devised . . . . The order of restitution shall also include reasonable costs incurred as a result of any investigation of the violation undertaken by the . . . trade association acting on behalf of the owner or lawful producer. . . ."
Here, according to the record before this court, defendant was ordered to pay $5,998 in restitution to the RIAA. This sum was calculated by Jim Orr, an investigative consultant and anti-piracy trainer with the RIAA. Orr submitted a declaration wherein he stated that he worked with Officer Gates, who seized approximately 200 CD's and 400 DVD's which, in Orr's opinion, were "unauthorized copies and piratical." Orr estimated the value of the 200 CD's to be approximately $1,438 based on a value of $7.19 per CD. Orr estimated the value of the 400 DVD's to be approximately $4,440 based on a value of $9.18 per DVD. Thus, the total value was set at $5,878. To this amount, the court added the RIAA's investigation costs of $120, as noted in the probation officer's report.
On appeal, defendant's sole challenge is that his state and federal constitutional rights to due process of law were violated by setting the restitution amount based on a "potential loss" theory, i.e., based on the number of CD's and DVD's in his possession, not the number sold. We agree.
The language in the statute is clear. Only actual losses may be considered in setting the amount of the restitution. (§ 1202.4, subds. (a), (r); People v. Busser (2010) 186 Cal.App.4th 1503, 1509-1510; People v. Ortiz (1997) 53 Cal.App.4th 791, 798-799 [victim must have suffered a loss and the amount of the loss must be determined by the trial court].) Nonetheless, we recognize that "the court's discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. [Citations.] In People v. Hove[] [(1999)] 76 Cal.App.4th [1266,] 1275, the court emphasized the following: '''''' . . . [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.]' [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.]"'" (People v. Baker (2005) 126 Cal.App.4th 463, 470.)
Here, the trial court considered and weighed all of the evidence, including Orr's declaration, the police report, and the probation officer's report. We note that both the police report and the probation officer's report indicate defendant sold five to ten CD's or DVD's a day since May 2009, until he was caught on October 9, 2009. If we pick a start date of May 16, then defendant sold the CD's or DVD's for 146 days, not including October 9. Twice as many DVD's were found than CD's, thus, it is safe to assume defendant sold twice as many DVD's as CD's. If we assume he only sold five CD's/DVD's each day, then he would have sold 730 CD's/DVD's, or approximately 243 CD's and 487 DVD's, and the amount of his restitution should have been set at $6,217.83, plus $120 in investigative costs, for a total of $6,337.83. However, the trial court decided to accept the numbers given to it by the RIAA, namely, 200 CD's and 400 DVD's. This decision was well within the trial court's discretion.
However, in his reply brief, defendant notes that after he filed his opening brief, this court held the RIAA is not a direct victim of his crimes. (People v. Kelly (2010) 189 Cal.App.4th 73, 75 [Fourth Dist., Div. Two].) Our decision in Kelly addressed crimes committed prior to the amendment of section 1202.4, adding subdivision (r), effective January 1, 2009. (People v. Kelly, supra, at p. 80.) Although the statute now provides that a trade association may be considered a victim when acting on behalf of the owner or lawful producer, here, as in Kelly, "the record supplied to this court does not sufficiently establish that RIAA was acting on behalf of the owner or lawful producer of the subject recordings. The [CD's or DVD's] and their owners or producers were not known or identified in the lower court. [¶] [Thus, t]he restitution order was made in excess of the trial court's jurisdiction and must be vacated. [Citations.]" (Ibid.)
IV. DISPOSITION
We vacate the trial court's finding that RIAA is entitled to restitution and its order awarding restitution to RIAA. In all other aspects, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to forward a copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.