Opinion
C082042
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. CYNTHIA CHRISTINE JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F3008)
In this case, defendant Cynthia Christine Johnson pled guilty to first degree burglary and was placed on probation. The court ordered her to pay the victims of the burglary a total of $12,304.89 in restitution, which consisted of $644.89 for a safe, $2,000 for new surveillance equipment, $35 to repair existing surveillance equipment, and $9,625 for jewelry, guns, and other items stolen. The court also ordered defendant to pay the cost of probation services not to exceed $75 per month and $250 for the preparation of the probation report. As a condition of probation, the court ordered defendant not to enter places where alcohol is the primary item of sale.
On appeal, defendant raises four issues. First, she contends the trial court abused its discretion in imposing victim restitution for home security costs when she did not commit a violent felony. Second, she contends there was insufficient evidence to impose restitution for the stolen firearms. Third, she contends the probation condition requiring her to stay out of places where alcohol is the primary item of sale is unconstitutionally vague. Finally, she contends she was denied her right to effective assistance of counsel when her attorney failed to object to the probation supervision and probation report fees based on her inability to pay.
We agree with defendant that the trial court abused its discretion when the court imposed restitution for the victim's purchase of new home surveillance equipment and a new safe. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 19, 2014, Ronald Nilson reported that defendant had broken into his home three days prior. Shasta County Sheriff's Deputy Gerry Maul contacted Ronald at his home. Ronald stated that video surveillance showed a person whom he believed was defendant entering his home on March 16, 2014. Deputy Maul reviewed the video surveillance, which showed a person who appeared to be female wearing a dark hooded jacket entering the master bedroom. Ronald stated that defendant took a bottle of Oxycodone worth $800 and coin jars containing approximately $20.
Due to a common surname, we will refer to Ronald Nilson by his first name, no disrespect is intended.
On March 20, 2014, Deputy Maul contacted defendant at her home. Defendant admitted that she entered Ronald's house without his permission and took his coins. Defendant, however, denied taking any other items.
When Deputy Maul recontacted Ronald, Ronald was adamant that defendant took his pills. Additionally, Ronald stated that defendant also took many other items, including jewelry and four firearms. Ronald admitted, however, that he had not seen the firearms in at least two months.
In May 2014, defendant was charged with first degree burglary, petty theft, and trespass. The complaint originally alleged the burglary was a violent felony within the meaning of Penal Code section 667.5, subdivision (c)(21) because another person other than an accomplice was present during the commission of the burglary, but this allegation was later stricken at the request of the prosecution.
Undesignated statutory references are to the Penal Code.
Shortly after the complaint was filed, the Nilsons requested $11,225 in restitution for items stolen--including four firearms, ammunition, cash, pills, and jewelry--and $500 for additional security cameras to be added for future burglaries. The stolen firearms consisted of two shotguns and two rifles.
In February 2015, defendant pled guilty to the burglary charge in exchange for dismissal of the other two charges and a grant of probation.
On April 2, 2015, the trial court placed defendant on probation for three years. At that time, the court ordered defendant to pay $522 in restitution, consisting of $500 "with regard to the security system and it's [sic] updates" and $22 for the stolen coins. The court reserved jurisdiction over the remainder of the restitution requested by the Nilsons and over defendant's right to a restitution hearing. The court also ordered defendant to pay probation supervision fees not to exceed $75 per month and a $250 fee for the preparation of the probation report. Additionally, the court ordered defendant as a condition of probation not to enter places where alcohol is the primary item of sale.
The Nilsons subsequently requested additional restitution consisting of $647 for a new safe, $1,000 to repair and replace the surveillance system, and $200 for a new lock and repairs to a door; defendant requested a restitution hearing regarding the additional restitution.
On December 14, 2015, the trial court held a restitution hearing at which defendant called Ronald Nilson to testify. Ronald testified that the only damage to the surveillance system was that four wires were cut, and he spent probably $35 on material to repair them. He also testified that he spent roughly $2,000 adding cameras to the system and replacing a board used to brace the door that defendant broke through while entering the home.
The restitution hearing later resumed on March 14, 2016, at which time defendant called Deputy Maul as a witness. Deputy Maul testified that he watched the security footage Ronald provided to him, and the footage showed there was only one entry and one exit. The deputy further testified that he was not able to see any property on the woman in the video when she exited the home. From what he saw, it would have been impossible for the woman in the video to conceal long guns under her clothing. Deputy Maul also testified that Ronald told him other people could have entered the house.
At the end of the restitution hearing, the trial court asked both counsel to put in writing their positions on what the restitution amount should be. The People requested $6,854 in restitution, which they claimed was "the total itemized list of property stolen, plus $1000 for the security system, $200 for the door repairs, and $644 for the safe." Defendant argued there was no basis to order restitution for the purchase of the safe, restitution for repairs to the surveillance system should be limited to $35, restitution for damage to the door should be limited to the reasonable value of the broken piece of wood, and no restitution should be ordered for the jewelry claimed stolen.
On April 4, 2016, the trial court found a prima facie case for restitution had been made and the prima facie case was not rebutted by the testimony of Ronald or Deputy Maul. The trial court ordered defendant to pay $11,804.89 in restitution, as follows: (1) $644.89 for the safe; (2) $1,500 for additional surveillance equipment; (3) $35 for repairs to the existing surveillance equipment; (4) and $9,625 for the jewelry, firearms, and other items stolen.
The minute order from the restitution hearing erroneously notes that the $11,804.89 figure "include[d]" the $522 in restitution originally ordered in April 2015. In its oral ruling, however, the trial court made clear that it was not going to disturb the original $500 ordered for additional surveillance equipment, but instead was simply adding $1,500 to that amount, for a total of $2,000. Thus, the $11,804.89 did not include or supersede the $500 originally ordered for new surveillance equipment, but it does appear to have superseded the $22 for the stolen coins, inasmuch as the list the trial court relied upon to come up with the figure of $9,625 for the stolen items included $45 for stolen dimes and nickels. Thus, we construe the court's orders to have ordered a total of $12,304.89 in victim restitution.
Defendant timely appealed the final restitution order.
DISCUSSION
I
Authority To Order Restitution For Residential Security Expenses
On appeal, defendant first argues that the trial court abused its discretion when the court imposed restitution for the safe and the additional surveillance equipment because expenses to install or increase residential security can be ordered as restitution only when the crime at issue qualifies as a violent felony. The People agree. For the reasons that follow, we also agree that the court erred.
Subdivision (f) of section 1202.4 provides, with certain exceptions not applicable here, that "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."
Subdivision (f)(3) of section 1202.4 further provides, in pertinent part, as follows: "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 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."
Defendant's first degree burglary conviction does not meet the definition of a violent felony under section 667.5, as the allegation that someone other than an accomplice was present was stricken before defendant's plea. (See § 667.5, subd. (c)(21) [defining as a violent felony "any burglary of the first degree . . . wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary"].) Thus, the question here is whether a trial court has the authority to award restitution for expenses to install or increase residential security for a burglary that does not qualify as a violent felony.
When, as here, the propriety of a restitution order turns on the interpretation of a statute, a question of law is raised and we review the matter de novo. (In re Tommy A. (2005) 131 Cal.App.4th 1580, 1586.) As with all questions of statutory interpretation, our task is to determine the intent of the Legislature. (Burden v. Snowden (1992) 2 Cal.4th 556, 562 ["We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent"].) There are at least two principles of statutory construction available to assist us in the inquiry here. First is the maxim expressio unius est exclusion alterius, "under which 'the enumeration of things to which a statute applies is presumed to exclude things not mentioned.' " (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 89-90.)
In subdivision (f)(3)(J) of section 1202.4, the Legislature specifically provided that "[e]xpenses to install or increase residential security" qualify as a compensable economic loss for purposes of victim restitution when those expenses are "incurred related to a violent felony, as defined in subdivision (c) of Section 667.5." Implicit in this provision is the expression of legislative intent that such expenses are not compensable as victim restitution when they are incurred related to a crime that is not a violent felony as defined in subdivision (c) of section 667.5. While "expressio unius est exclusio alterius is no magical incantation, nor does it refer to an immutable rule," it "should be applied 'where appropriate and necessary to the just enforcement of the provisions of a statute.' " (Estate of Banerjee (1978) 21 Cal.3d 527, 539.)
That leads us to the second applicable principle of statutory construction--that "[s]ignificance should be given, if possible to every word, phrase, sentence and part of an act." (People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 638.) If we were to read "including, but not limited to, all of the following" as allowing victim restitution for "[e]xpenses to install or increase residential security" that are incurred related to any crime, notwithstanding the specific reference in section 1202.4, subdivision (f)(3)(J) to violent felonies as defined in subdivision (c) of section 667.5, then we would render that specific reference superfluous. Of course, "interpretations which render any part of a statute superfluous are to be avoided." (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1207.) The only way to give meaning to all parts of section 1202.4, subdivision (f)(3)(J), and to avoid a construction that renders part of that provision superfluous, is to construe the reference to violent felonies as limiting the circumstances in which victim restitution is available for expenses to install or increase residential security.
We recognize that "an exception [to a general power] should not be construed to limit the general power except to the extent that is clearly does so." (Hurst v. City & County of San Francisco (1949) 33 Cal.2d 298, 301.) Here, however, by specifically referencing the definition of "violent felony" in subdivision (c) of section 667.5, the provision in section 1202.4 subdivision (f)(3)(J) does clearly limit victim restitution for expenses to install or increase residential security in residential burglary cases to those cases in which it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
Finally, the primary purpose of restitution is to restore the economic status quo by reimbursing the victim for any losses suffered as a result of the defendant's conduct. (People v. Giordano (2007) 42 Cal.4th 644, 658.) Thus, restitution is limited to the amount necessary to make the victim whole. (People v. Fortune (2005) 129 Cal.App.4th 790, 794-795.) The Legislature could have reasonably determined that the victim of a violent felony is left feeling so vulnerable that a security system is a reasonably necessary part of making them whole. In the case of a burglary of an unoccupied dwelling, however, providing the victim with a security system may go beyond making the victim whole and become more of a windfall--providing them with an asset they did not previously have. (People v. Thygesen (1999) 69 Cal.App.4th 988, 995 ["the purpose of the restitution statute is to make that victim whole, not to give a windfall"].) Therefore, victim restitution for a subsequently installed home security system is reasonably limited, by statute, to those instances where the expenses were incurred as a result of a violent felony.
Here, the $644.89 the Nilsons spent on a safe and the $2,000 they spent on additional surveillance equipment both qualify as "[e]xpenses to install or increase residential security." Because those expenses were not incurred as a result of a violent felony, the trial court erred in ordering restitution for those expenses.
We note that the trial court ordered restitution of $500 of the $2,000 the Nilsons ultimately claimed for the expenses of added surveillance equipment as part of the order granting probation in April 2015, but defendant never appealed from that order. Nevertheless, the People do not contend that defendant's challenge to that $500 is time-barred; instead, they concede error with respect to the entire $2,000. As the People have not raised any issue about the timeliness of defendant's challenge to the initial $500, we do not consider the point further.
II
Sufficiency Of The Evidence Relating To The Stolen Guns
Defendant next contends there was insufficient evidence to support a restitution order for the stolen firearms. We disagree.
"A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. ' "[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt." ' [Citation.] Section 1202.4 does not, by its terms, require any particular kind of proof. . . . [Citations.] Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant's criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. [Citation.] The defendant has the burden of rebutting the victim's statement of losses, and to do so, may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property. [Citation.]" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.)
Here, defendant asserts that the prosecutor failed to show by a preponderance of the evidence that she took the guns for two reasons. First, according to defendant, Deputy Maul testified that he reviewed the surveillance footage from the burglary, the footage revealed one entrance and one exit, he did not see any property on defendant when she left the residence, and he believed it would have been impossible for her to conceal the guns under her clothing. Second, defendant contends Ronald admitted he had not seen the guns in at least two months and other people could have entered the residence. In defendant's view, the foregoing evidence precluded the trial court from finding by a preponderance of the evidence that defendant took the guns.
We are not persuaded. Ronald's testimony that "[f]our guns were missing" after the burglary was sufficient to make out a prima facie case that defendant took the guns. Thus, the burden shifted to defendant to prove otherwise. With respect to Deputy Maul's testimony, it is true he testified it would have been impossible for defendant to conceal two shotguns and two rifles under her clothing "[f]rom what [he] saw" on the surveillance video, but there are at least two significant limitations to Deputy Maul's testimony that defendant fails to mention. First, while Deputy Maul testified he watched all the footage Ronald had to offer him, and Ronald told him that was all the footage available, that testimony did not conclusively establish that no other surveillance footage of the burglary existed. Second, and more important, while Deputy Maul testified that the surveillance footage he viewed showed only one entry and one exit by defendant, that testimony did not conclusively negate the possibility that defendant made one or more other entries and exits that did not appear on any surveillance footage. Indeed, the trial court recognized as much in making its restitution order.
As for Ronald's admission to Deputy Maul that "he had not seen the firearms in at least two months [because] they had been stored under clothing in a closet," and Deputy Maul's testimony that Ronald also told him that "other people could have entered his house," this evidence also does not conclusively rebut the prima facie case that defendant took the guns. At best, the evidence on which defendant relies raises the possibility that someone other than defendant could have taken the guns. That is not enough to support defendant's claim of evidentiary insufficiency. The trial court credited the Nilsons's evidence that defendant took the guns, and "[w]e do not reweigh or reinterpret the evidence; rather, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact." (People v. Baker (2005) 126 Cal.App.4th 463, 469.) Here, the evidence was sufficient notwithstanding defendant's claim to the contrary.
III
Unconstitutionally Vague Probation Condition
Defendant contends the probation condition requiring her to stay out of places where alcohol is the primary item of sale is unconstitutionally vague for lack of an express scienter requirement. We disagree. In People v. Hall (Feb. 9, 2017, S227193) ___ Cal.4th ___ , our Supreme Court recently rejected a similar argument regarding probation conditions that barred the defendant from possessing firearms or illegal drugs. (Id. at p. ___ [ p. 1].) There, the court concluded that a scienter requirement -- barring only knowing possession of the prohibited items -- was implicit in the conditions, and "[b]ecause no change to the substance of either condition would be wrought by adding the word 'knowingly,' " the court "decline[d the] defendant's invitation to modify those conditions simply to make explicit what the law already makes implicit." (Id. at pp. ___ [pp. 1, 10].)
Defendant fails to explain how she can be deemed to have timely challenged this probation condition when she did not appeal from the order granting probation but instead appealed only from the restitution order entered a year later. Nevertheless, the People do not contend her challenge to this condition is untimely, and for this reason we choose to reach the merits of defendant's argument.
The same result is warranted here. The probation condition at issue here implicitly requires defendant to stay out of places where she knows alcohol is the primary item of sale. With this implicit scienter requirement, the condition is not unconstitutionally vague, and no modification to the condition is warranted.
IV
Ineffective Assistance Of Counsel
Finally, defendant contends she was denied her right to effective assistance of counsel by her counsel's failure to object to the probation supervision fees and the probation report fee based on her inability to pay. She claims that had her counsel objected and specifically outlined why she did not have the ability to pay the fees, there was a significant likelihood the court would have found she did not have the ability to pay the fees. We disagree.
As with her argument regarding the probation condition, defendant fails to explain how her challenge to these fees can be deemed timely when she did not appeal from the order imposing these fees but instead appealed only from the restitution order entered a year later. Nevertheless, the People do not contend her challenge to fees is untimely, and for this reason we choose to reach the merits of defendant's argument.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) "[T]he right entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid.) In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 ; In re Avena (1996) 12 Cal.4th 694, 721.) Second, he must also show prejudice flowing from counsel's performance or lack thereof. (Strickland, at pp. 691-692 [80 L.Ed.2d at pp. 695, 696]; In re Avena, at p. 721.) "Surmounting Strickland's high bar is never an easy task." (Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].) Moreover, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice . . . that course should be followed. (Strickland, at p. 697 .)
Under subdivision (b) of section 1203.1b, "[t]he court shall order the defendant to pay the reasonable costs if it determines that the defendant has the ability to pay those costs based on the report of the probation officer, or his or her authorized representative."
Under subdivision (e) of section 1203.1b, "[t]he term 'ability to pay' means the overall capability of the defendant to reimburse the costs, or portion of the costs, of conducting the presentence investigation, preparing the preplea or presentence report . . . and shall include, but shall not be limited to, the defendant's: [¶] (1) Present financial position. [¶] (2) Reasonably discernible future financial position. . . . [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs."
Here, defendant asserts that her counsel should have objected to the fees based on her inability to pay them. Defendant states that the probation report indicated she was unemployed, on public assistance, and taking care of her daughter's children. She contends there was a significant likelihood the court would have found she did not have the ability to pay the contested fees if defense counsel had brought these facts to the court's attention.
The probation report contained the following details relevant to defendant's ability to pay: she resides with two elderly roommates and two grandchildren who are dependent on her; she is currently unemployed; she receives an income of $578 a month in cash aid; she is currently charged $150 monthly for rent, although she was charged $400 previously; and her roommates offer her transportation when she needs it. --------
Defendant's ineffective assistance argument lacks merit because defendant fails to show prejudice in that she is not wholly without recourse. (See People v. Trujillo (2015) 60 Cal.4th 850, 860.) Section 1203.1b, subdivision (c) authorizes the trial court to hold additional hearings to review a defendant's ability to pay fees and allows the probationer to petition the probation officer and the court for such review. (§ 1203.1b, subds. (c) & (f).) Because defendant may still challenge her ability to pay the contested fees during the remaining probationary period, she cannot establish prejudice from her counsel's failure to object to the imposition of the fees at sentencing.
DISPOSITION
The restitution order is modified to order defendant to pay a total of $9,660 in victim restitution to Ronald and Connie Nilson. As modified, the order is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Hoch, J.