Opinion
A119131
5-9-2008
THE PEOPLE, Plaintiff and Respondent, v. JOHN HAWTHORNE, Defendant and Appellant.
NOT TO BE PUBLISHED
John Hawthorne (appellant) challenges a victim restitution order directing him to pay $8,346.64. He contends the restitution order: (1) was unauthorized; (2) violated his plea bargain; and (3) violated his right to due process. We agree, and the Attorney General concedes, that the order was unauthorized. Thus, we shall strike the restitution order.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Offense
The facts relating to the underlying offense are taken from the probation report.
On April 24, 2005, appellant attempted to break into a residence. Police responded, saw appellant in a tree, and ordered him to get down. Appellant climbed down the tree and fled, and before being arrested, struggled with police, causing minor injuries to two officers. Numerous pry marks were found on the residences patio doors.
On June 6, 2005, appellant pled guilty to attempted first degree burglary (Pen. Code, §§ 459, 460, subd. (a), 664) and misdemeanor battery on a peace officer (Pen. Code, § 243, subd. (b).) The court placed appellant on three years probation with imposition of sentence suspended. As one of the conditions of probation, the court ordered appellant to pay restitution to the victim for the damage to the residence he attempted to burglarize.
The Probation Violation
On April 19, 2007, the district attorney filed a motion to revoke probation on the ground that appellant had broken into a car and stolen some items from the car. At a contested probation revocation hearing, Traci Pimentel testified that around 2:30 a.m. on April 17, 2007, she awoke to the sound of breaking glass. She looked outside and saw a man lean into the broken front passenger window of a parked BMW car and remove CDs from the car. Pimentel called 911, and when the police arrived, she accompanied them in a police car to search for the man. A few block away, she saw an individual she believed was the man she had just seen. In court, she identified appellant as that man. Appellant testified that he saw someone else break into the car and leave, and that he picked up some CDs and another item from the car. Shelly Robb, the owner of the car, testified that the broken glass caused damage to her cars interior leather and glove compartment. The cost for renting another car while her car was being repaired, and the repairs to her car, totaled $8,346.64.
On July 27, 2007, the trial court found appellant in violation of his probation, revoked his probation, and sentenced him to prison for the upper term of three years for the attempted burglary. The court also ordered appellant to pay $8,346.64 in restitution for the damage he caused to Robbs car. The order for restitution stated: "On: July 27, 2007 defendant: Steven Hawthorne was convicted of a crime that entitles the victim to restitution."
DISCUSSION
"Article I, section 28, subdivision (b) of the California Constitution guarantees `all persons who suffer losses as a result of criminal activity . . . the right to restitution from the persons convicted of the crimes for losses they suffer. (Italics added.)" (People v. Lai (2006) 138 Cal.App.4th 1227, 1246, fn. omitted.) "This language discloses a clear intent: `every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss. " (Id. at pp. 1246-1247, citing People v. Phelps (1996) 41 Cal.App.4th 946, 950.) Penal Code section 1202.4 "implements the constitutional right to restitution. As stated in section 1202.4, subdivision (a)(1), the Legislature intended to provide `that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. (§ 1202.4, subd. (a)(1), italics added.)." (Lai, supra, 138 Cal.App.4th at p. 1247.) Thus, "when a defendant is sentenced to state prison, section 1202.4 limits restitution to losses caused by the criminal conduct for which the defendant was convicted." (Lai, supra, at p. 1249.)
Preliminarily, we conclude, and the Attorney General concedes, that appellant has not forfeited his claim because an argument that the court imposed a restitution order that exceeded its statutory authority is a "purely legal issue that is not subject to the waiver rule." (See People v. Percelle (2005) 126 Cal.App.4th 164, 179.) We also conclude that the trial court did in fact exceed its authority in ordering appellant to pay the victim $8,346.64. As noted, the trial courts order stated: "On July 27, 2007 defendant: Steven Hawthorne was convicted of a crime that entitles the victim to restitution." However, appellant was not charged with, or convicted of, auto burglary, theft, or any other offense involving Robbs car. Instead, he was sentenced to prison for an entirely unrelated crime of attempted burglary. Because Robb did not incur economic loss "as a result of the commission of a crime" for which appellant was convicted, there was no statutory authority entitling her to restitution from him. (See Pen. Code, § 1202.4; see also People v. Thomas (1996) 42 Cal.App.4th 798, 803-804 [court may not impose monetary sanctions upon a defendant in the absence of statutory authority to do so].) The order directing appellant to pay restitution to Robb was unauthorized and must be stricken.
In light of our conclusion that the order was unauthorized, we will not address appellants contentions that the order also violated his plea bargain and his right to due process.
DISPOSITION
The order directing appellant to pay restitution to Shelly Robb in the amount of $8,346.64 shall be stricken.
We concur:
SIMONS, J.
NEEDHAM, J.