Opinion
C081614
01-27-2017
THE PEOPLE, Plaintiff and Respondent, v. STEPHEN ANTHONY LEZZENI, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CM044061, CM044168, & SCR106247)
Defendant Stephen Anthony Lezzeni appeals the judgment entered following his no contest pleas to child endangerment (Pen. Code, § 273a, subd. (a); case No. CM044061) and battery with serious bodily injury (§ 243, subd. (d); case No. CM044168). The trial court sentenced him to an aggregate term of seven years in prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court abused its discretion in awarding victim restitution. We agree, and shall reverse the trial court's restitution order and remand the matter for a new restitution hearing. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant entered no contest pleas, the following facts are derived from the probation report.
A. Case No. CM044061
On January 6, 2016, defendant was identified as a possible suspect in a residential burglary based on his use of the burglary victim's credit card. During a probation search of his residence, officers located, among other things, two firearms, ammunition, throwing knives, a bag containing approximately two pounds of marijuana in a crib, two digital scales containing traces of a suspected central nervous system stimulant, syringes, and methamphetamine smoking devices. The residence contained numerous items reportedly stolen during residential burglaries, including a firearm, ammunition, credit cards, bank bags, a video game system, and a driver's license. Officers also found numerous burglary tools inside defendant's residence and vehicle, including lock picking tools, pry tools, and an acetylene torch. At the time of the search, defendant's seven-month-old son and his girlfriend's three-year-old daughter were inside the residence.
Defendant had approximately $1,700 in cash in his wallet, while his girlfriend had $2,000 in cash in her purse. Although defendant's girlfriend claimed that he earned the money working "under the table," defendant told officers that he had not been employed for over two years.
Following the search, defendant was arrested and taken into custody. During his police interview, he admitted that all of the contraband in the residence belonged to him. He also claimed that the stolen items were found in a dumpster.
Defendant was charged with child endangerment (§ 273a, subd. (a)), receiving stolen property with a value exceeding $950 (§ 496, subd. (a)), possession of burglar's tools (§ 466), and possession of more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (c)). It was also alleged that defendant was armed with a firearm in commission of the child endangerment and receiving stolen property offenses. (§ 12022, subd. (a)(1).)
B. Case No. CM044168
On January 12, 2016, defendant and another inmate at the Butte County Jail brutally assaulted Cornelius McCauley. Defendant struck McCauley numerous times with his fist and stomped on his body with his feet. Defendant also held the victim's arms while another inmate repeatedly punched the victim.
Defendant was charged with assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) and battery with serious bodily injury (§ 243, subd. (d)). As to the assault offense, it was also alleged that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
C. Pleas and Sentencing
Pursuant to a negotiated disposition, defendant pleaded no contest to child endangerment (case No. CM044061) and battery with serious bodily injury (case No. CM044168). The remaining counts were dismissed with Harvey waivers. In light of his no contest pleas, the trial court found that defendant violated his probation in case No. SCR100061 and his diversion program in case No. SCR100271. The trial court also granted the prosecutor's motion to dismiss three other cases with Harvey waivers, including case No. SCR106247.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
In case No. SCR106247, defendant was charged with receiving stolen property with a value not exceeding $950 (§ 496, subd. (a)), possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)), and possession of burglar's tools (§ 466). These charges were filed following a probation search of defendant's backpack on December 12, 2015. Inside the backpack were hypodermic syringes, numerous stolen items, a pry bar, a pair of pliers, a window punch, and a long-handled prong set. Defendant told the police that he found the items in a dumpster.
The trial court sentenced defendant to an aggregate term of seven years in prison, consisting of six years for the child endangerment offense and one year for the battery offense. Defendant was also sentenced to a concurrent term of six months in case No. SCR100061, and a concurrent term of one year in case No. SCR100271. The trial court ordered defendant to pay various fines and fees, as well as victim restitution in the amount of $7,300 in case No. SCR106247.
Defendant did not file a notice of appeal in case No. SCR106247. Pursuant to the rule of liberally construing a notice of appeal in favor of its sufficiency (Cal. Rules of Court, rule 8.304(a)(4)), we construe defendant's notice of appeal as including case No. SCR106247. The People do not challenge the lack of a notice of appeal in case No. SCR106247 and have responded to defendant's contentions on appeal. --------
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the victim restitution award should be vacated because (1) there was no evidence that the victim's losses were proximately caused by his possession of stolen property, and (2) there was no factual or rational basis to support the restitution award. We agree with the latter argument and therefore reverse the restitution order and remand for a new hearing.
Section 1202.4, subdivision (a)(1) provides: "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." (§ 1202.4, subd. (a)(1).) To this end, section 1202.4, subdivision (f) provides: "[I]n 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." (§ 1202.4, subd. (f).)
A defendant has the right to a restitution hearing "to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) "The standard of proof at a restitution hearing is preponderance of the evidence, not reasonable doubt." (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319-1320.) "Section 1202.4 does not, by its terms, require any particular kind of proof." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543.) "[A] prima facie case for restitution is made by the People based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss. [Citations.] 'Once . . . the People have . . . made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.]' [Citation.]" (People v. Millard (2009) 175 Cal.App.4th 7, 26.)
A restitution order is reviewed under the abuse of discretion standard. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The trial court abuses its discretion when it acts contrary to law (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297) or fails to use "a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious. [Citations.]" (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) " 'When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.' [Citations.]" (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)
Here, defendant pleaded no contest to child endangerment (case No. CM044061) and battery with serious bodily injury (case No. CM044168), and agreed the court could consider his criminal history, the entire factual background of these cases, including any unfiled, dismissed or stricken charges or allegations, when ordering restitution. Prior to sentencing, the probation officer submitted a report indicating that Ronald Caporale claimed to be the victim of two burglaries and was seeking $35,000 in victim restitution, consisting of $15,000 for airplane log books and $20,000 in cash. The report included a letter written by Caporale, which indicated that a gold watch was stolen from his residence, and that he spent money to change his locks and replace construction tools.
At the sentencing hearing, the prosecutor argued that Caporale was entitled to victim restitution. The prosecutor explained that defendant was found to be in possession of a significant amount of stolen property, including Caporale's driver's license and several other items from Caporale's residence. The prosecutor further explained that, according to the police report, $1,000 in quarters, $20,000 in cash, and a checkbook containing $2,000 in cash were stolen from Caporale's residence. The prosecutor also noted that Caporale was a pilot, and that he was requesting $15,000 in restitution for two pilot logs that were stolen from his residence. In response to the prosecutor's request for victim restitution, defendant argued that restitution for Caporale was improper because he was never charged with first degree burglary. In addition, he argued that there was no evidence that the items Caporale was requesting restitution for were found in his possession, and that there was not enough evidence of loss to impose restitution for the items identified by the prosecutor. After the parties agreed to submit on the issue of restitution, the trial court asked the prosecutor how much cash was recovered. The prosecutor said that defendant had approximately $1,700, and his girlfriend had approximately $2,000. Following the imposition of sentence, the trial court ordered, without explanation, victim restitution to Caporale in the amount of $7,300 in case No. SCR106247.
We conclude that the trial court abused its discretion because there is no rational or factual basis for the amount of restitution ordered. The record does not disclose how the trial court arrived at the amount of restitution awarded to Caporale. The court provided no explanation for its decision, and the basis for the restitution order is not readily apparent from the record. Accordingly, we will reverse the judgment and remand the matter to allow the trial court to hold a new restitution hearing in order to determine the proper amount of victim restitution. Because we remand this matter for a new hearing, we will not consider defendant's contention that the restitution order was improper because there was no evidence that Caporale's losses were proximately caused by his possession of stolen property. If the trial court awards victim restitution following a new restitution hearing, it will be for the trial court to decide in the first instance whether the award is consistent with the principles of proximate causation. (See People v. Jones (2010) 187 Cal.App.4th 418, 427.) Finally, we decline to address defendant's suggestion that restitution was awarded in the wrong case. On remand, the trial court will have the opportunity to determine the proper case in which to award victim restitution.
DISPOSITION
The order requiring defendant to pay restitution in the amount of $7,300 is reversed and the matter is remanded to the trial court for a new restitution hearing. In all other respects the judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Mauro, J.