Opinion
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Riverside County, Nos. RIF133938, RIF135103, Edward D. Webster, Judge and John D. Molloy, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Michael Anthony Mixon.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant Jacoby Charmont Mixon.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
In several informations, the district attorney charged defendants Michael Anthony Mixon and his brother Jacoby Charmont Mixon with multiple counts of receiving stolen property and burglary occurring in Riverside and San Diego counties between March and December 2006. The court ordered three of the informations consolidated (case Nos. RIF135103, RIF130531, and BAF004894) under case No. RIF135103 but left case No. RIF133938 independent.
Prior to trial Jacoby admitted an on-bail enhancement and pleaded guilty in case No. RIF133938 to receiving stolen property, second degree burglary and attempted burglary. In the consolidated case No. RIF135103, he admitted an on-bail enhancement and pleaded guilty to two counts of burglary and one count each of receiving stolen property and misdemeanor possession of burglary tools. The court granted Jacoby’s motion to strike his 1996 strike conviction for making criminal threats and sentenced him to the agreed term of six years on the counts in case No. RIF133938 plus an additional eight-month term on those in case No. RIF135103. He received 1038 days actual time and 518 days of Penal Code section 4019 (all further statutory references are to this code unless otherwise stated) credits.
A jury found Michael guilty of all three counts in case No. RIF133938. In a bifurcated proceeding he admitted his prison priors and the on-bail enhancement. He subsequently pleaded guilty in consolidated case No. RIF135103 to three counts of burglary and admitted three prior prison term allegations. The court sentenced Michael in case No. RIF133938 to a total of nine years and imposed an eight-month consecutive term in accordance with the plea agreement in case No. RIF135103. The court awarded Michael 1, 075 days of actual custody and 536 days of section 4019 credits.
The trial court ordered defendants to pay restitution jointly and severally in the amount of, inter alia, $10,066.41 to two Game Stop stores. Defendants appealed from the judgments in case Nos. RIF133938 and RIF135103. Michael further appeals from an order denying his motion to release funds. All appeals were consolidated with E049952 (now G044930) designated as the lead case.
Michael contends the court abused its discretion in denying his motion to disclose the identity of a confidential informant and that he is entitled to withdraw his guilty plea in case No. RIF130531 if the conviction in case No. RIF133938 is reversed. Additionally, he, along with Jacoby, argues the court erred in requiring them to pay joint and several restitution to two Game Stop stores and that they are entitled to additional presentence custody credits under the version of section 4019 that became effective January 25, 2010 (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50, eff. Jan. 25, 2010; although the statute was subsequently amended, those versions are not applicable here), after they were sentenced.
We agree with defendants that the court’s order of restitution to the Game Stop stores constituted an abuse of discretion. We also agree that amended section 4019 applies retroactively and that Jacoby’s case should be remanded to allow the trial court to exercise its discretion whether to strike his prior serious felony conviction allegation for amended section 4019 purposes and, if so, to determine the presentence credits to which he is entitled.
We reverse the order requiring defendants to pay $110,066.41, jointly and severally, in restitution to the two Game Stop stores. Additionally, as to Michael, the matter is remanded to the trial court with instructions to amend the abstract of judgment to recalculate the presentence conduct credits to which he is entitled. As to Jacoby, the matter is remanded to allow the trial court to exercise its discretion and determine whether his prior serious felony conviction should be stricken for purposes of amended section 4019. If the prior serious felony is stricken for amended section 4019 purposes, the court shall amend the abstract of judgment to recalculate his section 4019 credits. In all other respects the judgments are affirmed.
FACTS
The police suspected Michael in the December 2006 burglary of a Hobby People store and of possessing stolen property. A records check showed police had contacted him and Jacoby late one night in September about an attempted burglary of a Cingular store. Jacoby was driving a van with a trash can full of empty bags, a hammer, a lug nut tool, a screwdriver, a carbon-type saw blade, binoculars, a face mask, work gloves, pliers, and no rear seats; Michael was the passenger. The entry points for both the Hobby People and Cingular stores were “identical and very unique.” The rear doors of both stores had been cut with a power saw.
Burglaries of two Game Stop stores, one in Vista and the other in Moreno Valley, and a Convoy Big Screen store occurred in a similar manner. The burglars entered the two Game Stop stores through the shared wall of an adjoining store. For the Convoy Big Screen store, entry was made through a hole in the wall of the utility room. In each case, the stores’ alarm wires were cut or ripped from the wall.
A surveillance camera in the same complex where the Vista Game Stop store was located showed a U-Haul parked in front of the store between 12 a.m. and 5 a.m. When police drove by defendants’ home, they observed a U-Haul truck and confirmed it had been rented by Michael.
After further investigation, police determined Michael had rented U-Haul trucks on dates corresponding to burglaries of the Hobby People store and the two Game Stop stores. Another U-Haul truck rented by a Daniel Fields, using Michael’s home address, coincided with the burglary of the Convoy Big Screen store.
Upon searching Michael’s residence, where he lived with Jacoby and other family members, police recovered “walkie talkies, bolt cutters, and a... mask, ” along with cargo van loads of stolen property from Ritz Camera, Game Stop, Convoy Big Screen, and Hobby People stores. Officers also found stolen merchandise in Jacoby’s bedroom.
DISCUSSION
1. Motion to Disclose Confidential Informant
Prior to trial, both Michael and Jacoby moved to disclose the identity of the confidential informant on whom police relied. After a hearing, the trial court stated it “would not grant the in camera hearing as to Michael... because there’s nothing here to suggest that [the confidential informant] would ever be able to exonerate [him].” But it found an issue as to Jacoby and conducted an in camera hearing, following which it denied the motions.
Michael contends the court erred in not granting him an in camera hearing, and asks that we independently review the sealed transcript to determine whether the court abused its discretion. (People v. Lawley (2002) 27 Cal.4th 102, 160.) The Attorney General does not oppose the request that we review the transcript. We have done so and uphold the court’s ruling.
2. Restitution Order
At the restitution hearing, the parties stipulated that $18,000 worth of Game Stop property had been recovered from the Mixon residence, specifically from Jacoby’s bedroom. After subtracting that amount, the trial court ordered Michael and Jacoby to pay over $110,000 in restitution jointly and severally for the burglary of the two Game Stop stores in case No. RIF133938.
The court reasoned it had “discretion to order probationary terms including restitution that is factually related to what [Jacoby] pled to.... [¶] [and] [¶] Michael... was found guilty of.” It found defendants were “involved with the criminal enterprise of this series of burglaries and the subsequent fencing of the stolen property.... The property was the same property that was found in the possession of Michael.... [Jacoby] lived in the same home with Michael.... The property was not only in the garage, but property from these particular burglaries were found in his room. There was Game Stop product found in his room. I believe there was product from virtually all of the burglaries except for the Coach one found in... Jacoby[‘s]... room, not vast amounts of it, but some products from each of the burglaries.” Even assuming neither defendant was present during the burglaries of the two Game Stops stores, “they were prepared and, in fact, did, indeed receive that property....” The court thus concluded “a sufficient factual nexus between the receiving stolen property and the burglary [existed] to believe that appropriately all the defendants, who... participated even in the recei[pt of] stolen property, should be liable to the store for its total loss....”
Both defendants challenge the restitution order, contending it violated section 1202.4, subdivision (a)(1). We agree.
Under section 1202.4, subdivision (a)(1), a crime victim “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.” Subdivision (f) clarifies the necessity for a causal relationship between the defendant’s crime and the victim’s loss by stating restitution shall be required “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct....” “Courts have interpreted section 1202.4 as limiting restitution awards to those losses arising out of the criminal activity that formed the basis of the conviction.” (People v. Woods, supra, 161 Cal.App.4th at p. 1049.) Although courts have broad discretion to order “restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction” (id. at p. 1050), where, as here, prison sentences are imposed, “section 1202.4 limits the scope of victim restitution to losses caused by the criminal conduct for which the defendant sustained the conviction” (ibid.).
Here, other than the stipulated $18,000, the prosecution did not show the remaining losses sustained by the Game Stop stores were the result of or caused by defendants’ receipt of stolen property. (People v. Woods, supra, 161 Cal.App.4th at p. 1049.) To this end, defendants convicted of receiving stolen property may only be held responsible for the return of or damage to the stolen property found in their possession even if it represents only a portion of the property that was stolen. (People v. Rivera (1989) 212 Cal.App.3d 1153, 1162 [reversing restitution order for stolen property not found in the defendant’s possession]; accord, People v. Baker (2005) 126 Cal.App.4th 463, 468 [“where a burglary victim’s property, which was the subject of the defendant’s conviction for receiving stolen property, had been returned, the court erred in awarding restitution for items taken in the burglary which were not found in the defendant’s possession”].)
The Attorney General maintains the trial court correctly found “a strong factual connection between [defendants’] conduct to the victims[’] loss of property stolen in the burglaries.” But as defendants argue, the court’s belief it had “discretion to order probationary terms including restitution that is factually related [to defendants’ crimes]” (italics omitted) demonstrates it erroneously “used the standard for determining restitution when a defendant is granted probation.” That was an error of law and “constitute[d] an abuse of the trial court’s discretion. [Citation.]” (People v. Woods, supra, 161 Cal.App.4th at p. 1049.)
3. Withdrawal of Plea
Michael argues that because his guilty plea in case No. RIF130531 was based on his convictions in case No. RIF133938, he should be permitted to withdraw his plea if his convictions are reversed for any reason. We need not address this contention because we are affirming the judgment and Michael presents no reasoned argument or authority as to why his convictions in case No. RIF133938 should be reversed.
4. Presentence Custody Credits
Both defendants were sentenced before the Legislature amended section 4019, effective January 25, 2010, to increase conduct credits for defendants who, among other things, have no current or prior convictions for serious or violent felonies. (§ 4019, subds. (b)(1), (c)(1).) They assert they are entitled to retroactive application of amended section 4019 because their sentences are not yet final and therefore should receive additional conduct credits.
a. Michael
Legislative amendments are generally presumed to operate prospectively unless an express declaration exists to the contrary. Because the amendment to section 4019 does not state whether retroactive application is permitted, the Attorney General asserts we must follow the general rule. But in In re Estrada (1965) 63 Cal.2d 740, the Supreme Court concluded that when the Legislature amends a statute to mitigate punishment, “the rule is that the amendment will operate retroactively so that the lighter punishment is imposed.” (Id. at p. 748.) The court explained, “It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.” (Id. at p. 745.)
For purposes of this rule, courts have traditionally deemed legislative enactments increasing the amount of credits a defendant may accrue as statutes that mitigate punishment. (See, e.g., People v. Doganiere (1978) 86 Cal.App.3d 237 [statute involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389 [statute involving custody credits].) The Supreme Court has granted review in a number of cases to resolve a split in authority as to whether the amendment to section 4019 is retroactive. Until it decides the matter differently, we conclude the amendment to section 4019 should be applied retroactively to cases pending on appeal because they effectively reduce the amount of time eligible defendants will spend in prison.
b. Jacoby
An additional issue remains as to whether Jacoby is disqualified from the benefits of amended section 4019 because he was alleged to have had a prior conviction for a serious felony and the statute precludes the award of additional credits to one convicted of such. (§ 4019, subds. (b)(2) & (c)(2).) He contends that because the court struck the prior, he “does not ‘have’ a prior serious felony for the purpose of the action” and is not subject to the limits of section 4019, subdivisions (b)(2) and (c)(2). The Attorney General does not address the argument.
In In re Pacheco (2007) 155 Cal.App.4th 1439, the trial court applied section 1385 to strike the additional punishment imposed by a section 12022.7 enhancement admitted by the defendant. (Id. at p. 1442.) Rejecting the argument that striking the enhancement for sentencing purposes also enabled the defendant to earn additional worktime custody credits, Pacheco stated: “Section 1385, subdivision (c)(1) authorizes the trial court to strike or dismiss an enhancement, or to ‘instead strike the additional punishment for that enhancement in the furtherance of justice.’ Having decided to afford leniency in this case, the sentencing court had two options. It could either strike the enhancement allegation in its entirety or strike the additional three-year punishment for the enhancement specified in section 12022.7, subdivision (a). Here, the trial court chose the latter option. The fact of the enhancement, however, remained.” (Id. at p. 1444.)
Unlike in Pacheco, the trial court in this case did not merely strike the additional punishment. Rather, it believed the plea-bargained sentence of six years, eight months was “sufficient” and gave defendant “full punishment with striking the strike.” In other words, it struck the prior serious felony allegation in its entirety.
Nevertheless, “‘when a court has struck a prior conviction allegation, it has not “wipe[d] out” that conviction as though the defendant had never suffered it; rather, the conviction remains a part of the defendant’s personal history, and a court may consider it when sentencing the defendant for other convictions, including others in the same proceeding.’” (In re Varnell (2003) 30 Cal.4th 1132, 1138 (Varnell).) Varnell held that the trial court in that case lacked power under section 1385 to strike a prior conviction in order to make the defendant eligible for Proposition 36 sentencing. This was because section 1385 only authorizes the dismissal of “actions, ” which are “‘individual charges and allegations in a criminal action’ [citations]” (Varnell, supra, 30 Cal.4th at pp. 1135, 1137), and not uncharged sentencing factors, i.e., “circumstance[s], which may be either aggravating or mitigating in character, that support[] a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense’ [citations]” (id. at pp. 1135, fn. 3, italics omitted, 1139). Stated otherwise, “section 1385 may be used to dismiss sentencing allegations—but not sentencing factors....” (Id. at p. 1138.)
Jacoby argues the provisions of amended section 4019, subdivisions (b)(2) and (c)(2) constitute a sentencing allegation or “action” that must be pleaded and proven and may be stricken in the court’s discretion, and not sentencing factors, which do not have those limitations and may not be stricken under section 1385. We agree. The Varnell court acknowledged its prior case, People v. Lo Cicero (1969) 71 Cal.2d 1186, “recognized an implied pleading and proof requirement in the predecessor to Health and Safety Code section 11370, which prohibited probation for any defendant convicted of certain narcotics offenses if the defendant had previously been convicted of a narcotics offense. That statute did not expressly require the prior conviction establishing the defendant’s ineligibility to be pleaded and proved, but we recognized an implied pleading and proof requirement....” (Varnell, supra, 30 Cal.4th at p. 1140.) But Varnell distinguished Lo Cicero on the basis the Varnell defendant’s “prior conviction and the resulting prison term did not eliminate his opportunity to be granted probation” as he was eligible for probation under another statute and thus there was no need to imply a pleading and proof requirement. (Ibid.)
Here, in contrast, because defendant’s prior felony strike conviction precluded his ability to receive additional credits under amended section 4019, thereby increasing his punishment (see People v. Lo Cicero, supra, 71 Cal.2d at p. 1193 [ineligibility for probation based on prior conviction “is equivalent to an increase in penalty”]), it needed to be pleaded and proven. As such, it was an “action” subject to dismissal under section 1385 for conduct credit purposes under section 4019.
Because sentence was imposed before amended section 4019’s effective date, the court had no opportunity to consider whether to exercise its discretion to strike Jacoby’s prior serious felony strike conviction for section 4019 purposes. We shall remand the matter to the trial court to allow it to do so.
DISPOSITION
The order requiring defendants Michael Mixon and Jacoby Mixon to jointly and severally pay restitution to the Game Stop stores in the amount of $110,066.41 is reversed.
As to Michael Mixon, the matter is remanded to the trial court with instructions to amend the abstract of judgment to recalculate the presentence conduct credits to which he is entitled under amended section 4019, and deliver a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
As to Jacoby Mixon, the matter is remanded to the trial court to exercise its discretion and determine whether his prior serious felony conviction should be stricken for purposes of amended section 4019. If the prior serious felony is stricken for amended section 4019 purposes, the court is directed to amend the abstract of judgment to recalculate the section 4019 credits to which Jacoby is entitled, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In other respects the judgment is affirmed.
WE CONCUR: BEDSWORTH, J., ARONSON, J.