Opinion
A132146
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. BASHEER F. MUHUMMAD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 161191B)
Defendant Basheer F. Muhummad appeals from a victim restitution order entered some time after he pleaded no contest to assault by means likely to cause serious bodily injury, in violation of Penal Code section 245, subdivision (a)(1), and the trial court imposed a sentence of five years probation. Defendant's appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. Defendant was informed of his right to file a supplemental brief and did not file such a brief. (See People v. Kelly (2006) 40 Cal.4th 106, 124.) We have conducted the review requested by appellate counsel and, finding no arguable issues, affirm the judgment.
Further statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2009, the Alameda County District Attorney (DA) filed a consolidated information charging defendant and three co-defendants with offenses committed against the victim, Jerome Muhammad, on or about December 31, 2008. Count two of the consolidated information alleged all defendants assaulted the victim by means likely to produce great bodily injury, in violation of section 245, subdivision (a)(1). In relation to count two, the information also alleged defendant personally inflicted great bodily injury upon the victim, within the meaning of section 12022.7, subdivision (a). The consolidated information also alleged defendant had suffered a prior conviction for false imprisonment by violence, in violation of section 236.
The probation report states that the charges against defendants arose from an incident at the Elijah Muhammad Center (Center) on December 30, 2008. According to the probation report, a group of members of the Center severely beat the victim for disrespecting another member and threw all the victims' belongings out into the front yard. As a result of the beating, the victim suffered broken ribs; a swollen left eye that was closed for two days; blurry vision in his left eye; bruising to his head and a cauliflower ear; skin burns to knees and elbows; and bruising to the kidneys.
The charges against all defendants were tried to a jury in February 2010. The jury returned a verdict of "not guilty" on a robbery charge against a co-defendant and announced it could not reach a unanimous verdict on any of the remaining charges. The court discharged the jury and declared a mistrial.
At a hearing held on March 1, 2010, the DA announced the matter had been resolved by plea bargain and recited the terms and conditions of the resolution. The DA stated that if defendant pleaded no contest to assault by means likely to produce great bodily injury, as a non-strike violation of section 245, subdivision (a)(1), then defendant would be placed on five years of felony probation, with credit for time served, and pay restitution to the victim. Also, if defendant successfully completed probation in three years, the People would not oppose the felony conviction being reduced to a misdemeanor, pursuant to section 17, subdivision (b). The DA also stated the remaining allegations against defendant would be dismissed. Thereafter, the trial court explained defendant's constitutional rights to defend the charges, asked if he understood those rights, and confirmed he wished to surrender them by entering a plea. Trial counsel stipulated there was a factual basis for the plea based upon hearing transcripts, police reports and evidence adduced at trial. Defendant then pleaded no-contest to a non-strike violation of section 245, subdivision (a)(1). The court found defendant's plea was made knowingly and voluntarily and found defendant guilty of the offense.
The trial court held a sentencing hearing on March 29, 2010. The court sentenced defendant to a probationary term of five years, the first 65 days to be served in county jail, with credit for time served of 65 days. The court reserved the issue of victim restitution and set a hearing on the matter. Defendant did not file an appeal from the judgment imposed.
At a hearing held on August 13, 2010, the court awarded the victim restitution in the amount of $1,320 (3 weeks lost wages at $440 per week), jointly and severally enforceable against all defendants. At a later restitution hearing held on December 22, 2010, the victim testified that around ten people, including defendants, assaulted him on the day in question. The victim described the injuries he sustained in the assault, including five broken ribs. In addition, the victim stated the assault ended with three men holding him down on the kitchen floor while others removed his belongings from his room. After the men released him, the victim was able to walk outside and saw that "everything that was in my room was out in the front lawn." The victim banged on a neighbor's door to ask for help and the neighbor called 911. The victim was rushed to the hospital and was unable to collect or secure his belongings. Following his release from hospital, the victim was unable to work for about six weeks and stayed with his sister while recuperating from his injuries. The victim provided a list of his personal property that went missing as a result of the altercation, which he valued at over $20,000. After the victim testified, the court granted a request for briefing and the matter was continued until March 11, 2011.
At the March 2011 hearing, the court entertained argument from counsel regarding the victim's credibility and whether the losses claimed by the victim were related to defendants' assault convictions. At the conclusion of the hearing, the court found sufficient "nexus" between the offense conduct and the loss claimed in restitution, stating, "There is liability. There is a connection, that's clear, clear from the facts, clear from the testimony." The court also found "the victim in this case credible" even if not "totally accurate" in every detail. The court set a further hearing in order "to have the DA firm up his position and clarify it, as much as possible" before making a final determination on additional restitution.
On April 20, 2011, the DA filed an itemized restitution request, requesting a supplemental order of restitution against all defendants, jointly and severally, in the amount of $28,597.85. The DA's request comprised $20,463.85 in lost or destroyed property; an additional $2,200 in lost wages due to injury; and $5,934 lost wages based on the victim's testimony he was released from a contract as a security guard after taking time off to testify at trial. Following a hearing on April 22, 2011, at which the court entertained argument of counsel regarding the DA's itemized restitution request, the court granted restitution for additional lost wages, on account of the victim's injuries, in the amount requested of $2,200. The court found no link between restitution and "lost wages due to trial" and denied the amount claimed for that item, $5,934. The court also reduced the amount claimed for lost or destroyed property by $3,200, and awarded supplemental restitution in the total amount of $19,463.85. Defendant filed a timely notice of appeal from the trial court's restitution order on May 19, 2011.
DISCUSSION
A trial court has broad discretion in imposing conditions of probation, and restitution will not be held invalid as a condition of probation unless (1) it has no relationship to the crime of which the defendant was convicted; (2) it relates to conduct not itself criminal; and (3) it requires or forbids conduct unrelated to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) Furthermore, "[p]robationary restitution may be imposed even if a defendant has not been convicted for a particular offense 'because probation is an " ' "act of clemency and grace," ' " not a matter of right. [Citation.] "[T]he granting of probation is not a right but a privilege, and if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense[,] he is free to refuse probation." [Citations.] Because a defendant has no right to probation, the trial court can impose probation conditions that it could not otherwise impose, so long as the conditions are not invalid under the three Lent criteria.' (Citation.)" (People v. Giordano (2007) 42 Cal.4th 644, 663, fn. 7 (Giordano); see also In re I.M. (2005) 125 Cal.App.4th 1195, 1209 ["That a defendant was not personally or immediately responsible for the victim's loss does not render an order of restitution improper" and trial court has 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"].) Finally, " ' "[w]here two or more persons act in concert, it is well settled both in criminal and in civil cases that each will be liable for the entire result." ' " (People v. Campbell (1994) 21 Cal.App.4th 825, 834.) "Joint and several liability . . . increases the likelihood that the victim will be fully compensated," which "is an important component of the restitution scheme." (People v. Zito (1992) 8 Cal.App.4th 736, 744.)
Here, the loss of the victim's belongings and his time lost from work were directly related to defendant's criminal conduct, where defendant, acting in concert with his co-defendants, beat the victim severely while his belongings were removed from his residence and thrown out into the front yard. The victim was unable to secure his belongings before leaving the scene because he was transported directly to the hospital due to the severity of his injuries. Moreover, upon release from hospital, the victim spent weeks recuperating with his sister and was unable to work during that time. In these circumstances, the trial court's award of restitution, imposed jointly and severally on all defendants, accords fully with the criteria described in Lent, supra, and is therefore a valid condition of probation. (See (Giordano, supra, 42 Cal.4th at p. 663, fn. 7 ["With respect to the third [Lent] criterion, 'an order for restitution, i.e., attempting to make a victim whole, has generally been deemed a deterrent to future criminality [citation], and the court is not limited to the transactions or amounts of which defendant is actually convicted [citations].' (Citation.)].)
Nor was the restitution amount awarded by the trial court an abuse of discretion. The abuse of discretion standard " 'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.] Under this standard, a trial court has broad discretion to choose a method for calculating the amount of restitution [but] must employ a method that is rationally designed to determine the [] victim's economic loss." (Giordano, supra, 42 Cal.4th at pp. 663-664.) 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. Keichler (2005) 129 Cal.App.4th 1039, 1045.)
In this case, the trial court based its order of supplemental restitution on the victim's credible testimony regarding the extent of his injuries and the value of his possessions. We will not disturb the trial court's credibility determination on appeal. (See, e.g., People v. Hughes (1960) 183 Cal.App.2d 107, 112 [determination of the credibility of witnesses is the sole province of the trial court].) The court also considered the documentary evidence submitted by the victim and the DA's itemized request for supplemental restitution. Defendant offered no evidence in rebuttal. (See People v. Gemelli (2008) 161 Cal.App.4th 1539, 1543 ["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"].) In sum, the record shows the trial court employed a "factual and rational basis for the amount of restitution ordered." (See People v. Keichler, supra, 129 Cal.App.4th at p. 1045.) Thus, the trial court's restitution award was not an abuse of discretion. (Ibid.)
In sum, having reviewed the entire record, we have identified no arguable issues that warrant further briefing. Accordingly, the trial court's judgment is affirmed. (See People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)
DISPOSITION
The judgment is affirmed.
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Jenkins, J.
We concur: ________________
McGuiness, P. J.
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Pollak, J.