Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM026920, CM031889
DUARTE, J.
Pursuant to a plea bargain, defendant Matthew Ryan Hayes pled no contest to two counts of first degree burglary (Pen. Code, §§ 459, 460); in return, several counts of receiving stolen property were dismissed. Defendant seeks appellate review of the trial court’s order requiring him to pay $1858.86 in restitution for a home security system installed by the victim of one of the dismissed counts. (§ 1202.4.) Defendant contends that, because he was not present at that specific burglary, he did not cause the victim’s loss, and the restitution order is contrary to the legislative intent of section 1202.4.
The defendant has used several alias names on various documents in the records. He is also known as: Matthew Ryan Romero Hayes, Matthew Romero Hayes, and Romero Hayes. For purposes of this appeal, we will refer to defendant as Matthew Ryan Hayes, as we find this name consistently used throughout the records.
Further undesignated statutory references are to the Penal Code.
We conclude the restitution order was proper based on defendant’s active and ongoing participation in various burglaries, which the trial court properly considered pursuant to defendant’s Harvey waiver, which expressly allowed the trial court to consider for restitution purposes defendant’s prior criminal history and entire factual background of the case. We therefore affirm the order.
People v. Harvey (1979) 25 Cal.3d 754.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2009, victim Natalie Guiliano reported a residential burglary in which a $400 PlayStation 3, a $1000 laptop computer, and other items were stolen. A subsequent attempted use of the PlayStation led police to defendant, who was on probation. A probation search of defendant’s residence revealed the stolen PlayStation and property (including a gun) stolen from other homes. Defendant ultimately told police he “fence[d]” stolen property for one Tim Schneider of no known address, though defendant intended to keep and pay Schneider for the PlayStation. Defendant said he was “just the ‘driver’” for Schneider, and defendant never entered the homes. Schneider entered the homes and removed the property. Defendant said he did not know the source of the PlayStation and received it before becoming Schneider’s getaway driver. When asked about how one knew which homes to hit, defendant said, “you just know.”
In trial court case No. CM033189, the prosecution charged defendant with the following offenses occurring on November 17, 2009: (1) first degree residential burglary (§ 459) of a dwelling on El Monte in Chico; (2) first degree residential burglary (§ 459) of a dwelling on Manzanita in Chico; (3) possession of a firearm by a felon (§ 12021, subd. (a)(1)); (4) receiving stolen property (§ 496, subd. (a)) (a PlayStation 3) from a third burglary (the Guiliano home); (5) receiving stolen property (§ 496, subd. (a)) (a.357 revolver) from another victim; (6) receiving stolen property (§ 496, subd. (a)) from other burglary victims; and (7) receiving stolen property (§ 496, subd. (a)) from yet another burglary victim.
On February 18, 2010, defendant entered a plea agreement in case No. CM031889, in which he pled no contest to counts 1 and 2, first degree residential burglary (§ 459), and the remaining counts were dismissed with Harvey waivers. The plea agreement signed by defendant stated, “(HARVEY WAIVER) I STIPULATE THE SENTENCING JUDGE MAY CONSIDER MY PRIOR CRIMINAL HISTORY AND THE ENTIRE FACTUAL BACKGROUND OF THE CASE, INCLUDING ANY UNFILED, DISMISSED OR STRICKEN CHARGES OR ALLEGATIONS OR CASES WHEN GRANTING PROBATION, ORDERING RESTITUTION OR IMPOSING SENTENCE.”
Defendant’s prior criminal history included the following:
On July 8, 2007, police officers investigating a string of burglaries were led to defendant’s motel room, where they found stolen property, burglary tools, and drugs. In trial court case No. CM026920, defendant was convicted in August 2007 of (1) receiving stolen property (§ 496, subd. (a)); (2) possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)); (3) possession of a controlled substance, Hydrocodone (Health & Saf. Code, § 11350, subd. (a)); (4) possession of burglar tools (§ 466); and (5) forgery (§ 484e, subd. (c)). The trial court placed defendant on formal probation for five years.
In January 2008, while defendant was on probation, a police officer initiated a traffic stop of defendant and found in his car controlled substances and personal property which defendant said he bought “cheaply” and admitted he believed was stolen property. The prosecution charged defendant with the drug offense and violation of probation. He admitted the probation violation; the drug offense was dismissed. He was released from custody and entered a drug treatment program, which he completed in March 2009.
Defendant was arrested on the current charges in November 2009. In case No. CM031889, the trial court accepted the no contest plea and found defendant guilty of counts one and two (burglary), by virtue of which the court also found that defendant had violated his probation in case No. CM026920--the 2007 offenses of receiving stolen property (§ 496, subd. (a)) and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)).
At the sentencing hearing, in arguing for the upper term, the prosecutor argued the circumstances undermined defendant’s attempt to distance himself from the burglaries, i.e., at the time of the current offenses, defendant was on probation not only for receiving stolen property from six burglaries but also for possession of burglar tools (§ 466) in 2007. The prosecutor argued these facts indicated defendant was more than a mere driver or minor participant.
The trial court sentenced defendant to a total of eight years and eight months in prison, as follows: The upper term of six years on the count one burglary in case No. CM031889; a consecutive term of 16 months on the count two burglary in case No. CM031889; a consecutive term of eight months for receiving stolen property in case No. CM026920; a consecutive term of eight months for the drug offense in case No. CM026920; and a concurrent term of six months for misdemeanors.
One portion of the reporter’s transcript indicates the total sentence is eight years. However, the individual sentences listed in the reporter’s transcript add up to eight years and eight months, and the abstract of judgment shows eight years and eight months. Both sides agree the total was eight years and eight months. We therefore view the reference to eight years as a clerical error. (People v. Smith (1983) 33 Cal.3d 596, 599 [discrepancy in record will be harmonized if possible and, if not possible, circumstances of particular case will determine which portion of record prevails].)
The trial court ordered defendant to pay various amounts in restitution, including $1858.86 to the Guilianos--the victims in the dismissed count of receiving stolen property in case No. CM031889. The restitution was to reimburse for installation of a home security system. Mrs. Guiliano submitted a letter to the trial court describing the need for the security system. She returned home on the day of the burglary without immediately realizing her home had been burglarized. She discovered the crime as she was making a snack for her one-year-old daughter, who was running around the house. She felt “sheer panic and terror, ” not knowing if the intruder was still in the house. She and her son have trouble sleeping at night out of continuing fear.
Defendant objected and argued that he should not have to pay for the security system because he was never charged with burglarizing the Guiliano home. Defendant admitted possessing property stolen from their home but said he had a videotape showing he was at work at the time of the burglary.
The prosecutor argued, “I think it’s appropriate to pay for an alarm system when the defendant is profiting from the burglary. If the Court looks at the map and if Counsel looks at a map of where the Gu[i]liano’s residence is compared to the defendant’s residence, it’s a remarkable coincidence” as defendant and the Guilianos lived “very close to one another.”
The trial court said, “The Court is going to leave that restitution order in place for the reasons stated by [the prosecutor]. The fact that you have property from their house indicates some involvement, and I think it’s an appropriate use of the restitution procedure. And I know we’ll find out from the Court of Appeal whether that’s true or not.”
DISCUSSION
Defendant’s challenge to the restitution order is subject to appellate review without a certificate of probable cause, because he does not challenge the validity of his plea. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).)
We review a restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663; People v. Mearns (2002) 97 Cal.App.4th 493, 498 (Mearns).) Discretion is delimited by the applicable legal standards, a departure from which constitutes abuse of discretion. (People v. Harris (1998) 60 Cal.App.4th 727, 736-737.)
“[A]ll persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer....” (Cal. Const., art. I, § 28, subd. (b).) This constitutional provision is implemented by section 1202.4, which provides in part:
“(a)(1) It is the intent of the Legislature 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..
“(f) Except as provided in subdivisions (q) [restitution for human trafficking] and (r) [restitution for crimes involving a recording or audiovisual work], 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.... The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record....”
The People cite section 1192.3, which allows restitution for dismissed charges with a Harvey waiver, but that statute by its own terms does not apply when the defendant pleads to serious felonies such as the first degree burglaries in this case.
“[S]ection 1202.4, subdivision (f), unequivocally requires restitution of a victim for ‘economic loss as a result of the defendant’s conduct.’ A victim’s restitution right is to be broadly and liberally construed. [Citations.]” (Mearns, supra, 97 Cal.App.4th at p. 500.)
Defendant contends that, because section 1202.4, subdivision (f)(3)(J), expressly authorizes restitution for security systems when burglaries are committed while the victims were home, we must read section 1202.4 as prohibiting restitution for security systems where, as here, there was no evidence the victims were home at the time of the burglary. Otherwise, says defendant, subdivision (f)(3)(J) is superfluous. Defendant invokes the rule of statutory construction that, where possible, the courts will avoid a statutory construction that renders particular provisions of the statute superfluous. (Dix v. Superior Court (1991) 53 Cal.3d 442, 459.)
Section 1202.4, subdivision (f)(3), states, “To the extent possible, 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 the result of the defendant’s criminal conduct, including, but not limited to, all of the following:... [¶] (J) Expenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5 [defining violent felonies for prior prison term enhancements including burglary where the victim is home], including, but not limited to, a home security device or system, or replacing or increasing the number of locks.”
However, that rule is not controlling here, because section 1202.4, subdivision (f)(3), expressly states the enumerated list, including subparagraph (J), is a nonexclusive list of examples--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 the result of the defendant’s criminal conduct, including, but not limited to, all of the following [including subparagraph (J)]....” (§ 1202.4, subd. (f)(3), italics added.) “‘“A fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] In construing a statute, our first task is to look to the language of the statute itself. [Citation.] When the language is clear and there is no uncertainty as to the legislative intent, we look no further and simply enforce the statute according to its terms.”’” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046 (Keichler).) A rule of construction will not be applied to defeat the legislative intent. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 1392-1393.)
We said in Keichler, supra, 129 Cal.App.4th 1039: “Because the statute [section 1202.4] uses the language ‘including, but not limited to’ these enumerated losses, a trial court may compensate a victim for any economic loss which is proved to be the direct result of the defendant’s criminal behavior, even if not specifically enumerated in the statute. [Citation.]” (Id. at p. 1046 [affirming restitution order for traditional Hmong healing ceremonies and herbal medicines where defendant pleaded no contest to violating civil rights by uttering racial slurs during a fight].)
Accordingly, we reject defendant’s argument that section 1202.4 prohibits the restitution ordered in this case.
Defendant also argues restitution for the home security system was unauthorized under section 1202.4, because the security system had no relationship to the only crimes for which defendant was convicted--the burglaries of two other homes. The contention lacks merit.
Defendant acknowledges restitution may be ordered for counts dismissed pursuant to the Harvey waiver. (People v. Munoz (2007) 155 Cal.App.4th 160, 167; People v. Beck (1993) 17 Cal.App.4th 209, 215.) In Munoz, supra, we affirmed the trial court’s imposition of an upper term sentence based on the defendant’s history of violence reflected in dismissed charges, because the defendant signed a Harvey waiver expressly allowing the trial court to consider the defendant’s prior criminal history and the entire factual background of the case, including dismissed charges. (People v. Munoz, supra, 155 Cal.App.4th atpp. 167-168.)
Here, defendant signed a waiver expressly stating, “(HARVEY WAIVER) I STIPULATE THE SENTENCING JUDGE MAY CONSIDER MY PRIOR CRIMINAL HISTORY AND THE ENTIRE FACTUAL BACKGROUND OF THE CASE, INCLUDING ANY UNFILED, DISMISSED OR STRICKEN CHARGES OR ALLEGATIONS OR CASES WHEN GRANTING PROBATION, ORDERING RESTITUTION OR IMPOSING SENTENCE.” Thus, defendant expressly agreed the trial court could consider his prior criminal history and the entire factual background of the case in ordering restitution, including dismissed charges.
Defendant nevertheless argues “there is still a problem of the ordered restitution having a lack of relationship” to the dismissed crime of receiving stolen property. Defendant says there is no evidence he participated in the burglary of the Guiliano home, and he was not charged with burglarizing that home. He says the victims of the Guiliano burglary incurred their economic loss at the time of the original taking, not due to defendant’s later receiving their property.
However, as pointed out by the prosecution at the sentencing hearing, defendant’s prior criminal history and the entire factual background of the case, as reflected in the probation reports, showed defendant’s active involvement in burglarizing homes at the time of the burglary of the Guiliano home in October 2009. In August 2007, defendant was convicted of possession of burglar tools as well as receiving stolen property. In January 2008, while still on probation, defendant was caught with property he admittedly believed was stolen. While he was not charged with receiving stolen property in that proceeding (which charged only a drug offense and probation violation), defendant’s entire background shows defendant’s continuing, active involvement in an ongoing series of burglaries. In November 2009, while still on probation, defendant was caught in possession of stolen property, including property stolen from the Guiliano home in October 2009. In two encounters with defendant, police found property stolen in at least nine burglaries. Defendant admitted to police that he was “the driver” for some of the burglaries and “fenced” the stolen property. When questioned by police as to how homes were chosen for the burglaries, defendant said, “you just know.” Defendant lived very close to the Guilianos, giving him easy opportunity to learn when they would be away from home.
Even if defendant never entered the victims’ homes, he was an active participant in a series of burglaries. Given this history, the trial court was not required to believe defendant’s statement to police that he did not become the getaway driver until after the Guiliano burglary.
Defendant cites two cases finding trial court error in ordering defendants to pay restitution to the victim of the offense of receiving stolen property, where there was no showing the defendant was responsible for the theft. (People v. Rivera (1989) 212 Cal.App.3d 1153, 1161-1163 (Rivera); People v. Scroggins (1987) 191 Cal.App.3d 502, 506 (Scroggins) [trial court did not conclude, nor from the record could it have, that the defendant was responsible for the loss].) However, neither Rivera nor Scroggins involved a plea bargain with a Harvey waiver and a criminal history and background indicating active participation in ongoing burglary activity.
The People also observe Rivera relied on Scroggins, which relied on People v. Richards (1976) 17 Cal.3d 614, which narrowly construed a trial court’s authority to impose restitution for damages not specifically caused by the defendant’s criminal conduct. The California Supreme Court later disapproved that portion of Richards in People v. Carbajal (1995) 10 Cal.4th 1114, 1126. Carbajal expressly disapproved of Richards insofar as it may be read to require that trial courts refrain from conditioning probation on restitution “unless the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted.” (Carbajal, supra, 10 Cal.4th at p. 1126.) Since the Harvey waiver in this case renders Rivera and Scroggins inapposite, we need not address Carbajal.
Defendant cites People v. Lai (2006) 138 Cal.App.4th 1227, 1246-1249, as prohibiting restitution for losses incurred before the crime of which the defendant was convicted, because the losses were not actually caused by the defendant’s crime. However, Lai is inapposite because it involved a conviction by jury verdict (id. at p. 1246), rather than a plea bargain and Harvey waiver expressly allowing the court to consider the entire factual background and defendant’s criminal history. We conclude defendant fails to show grounds to reverse the restitution order.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., ROBIE, J.