Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. SA 055793, Katherine Mader, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Wayne Reiner appeals from a restitution order entered after he pled no contest to one count of second-degree burglary. Because the restitution order pertains to a charge that was dismissed, we vacate the order.
BACKGROUND
Reiner was charged with burglary in violation of Penal Code section 459 (count 1) and receiving stolen property in violation of Penal Code section 496, subdivision (a) (count 2). Pursuant to a plea bargain, on November 9, 2005, Reiner pled no-contest to count 1, and the trial court dismissed count 2. Reiner also admitted that he suffered a prior strike conviction of burglary in violation of section 459. The trial court sentenced Reiner to four years in state prison, with presentence credit of 327 days, and ordered him to pay a restitution fine of $200.
Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
At a restitution hearing on April 28, 2006, the trial court ordered him to pay $4,780 to victims Jose and Maria Artega. This amount reflects the cost of four Viking dishwashers, which Reiner had in his possession when the Los Angeles Police Department searched his residence based on a warrant obtained after Reiner’s fingerprints were found at the scene of the count 1 burglary. The dishwashers were unrelated to count 1, to which Reiner pled no contest, but they were the subject of the receiving stolen property charge, which was dismissed.
The $4,780 restitution order is appealable. After a plea of no contest, a defendant may appeal based on grounds that occurred after the entry of the plea and that do not challenge the validity of the plea. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).) In these circumstances, a defendant need not seek a certificate of probable cause. (Ibid.) Here, Reiner challenges only the restitution order, which was issued after he pled no contest to count 1, and he does not challenge the validity of the plea.
DISCUSSION
Reiner argues that the restitution order directing him to pay $4,780 to the Artegas is improper and must be vacated because the order is related to a crime of which he was not convicted. (People v. Percelle (2005) 126 Cal.App.4th 164; People v. Lai (2006) 138 Cal.App.4th 1227, 1246.) The People concede that the restitution order is improper, and we agree.
The People argue, however, that the trial court’s subsequent order to return the dishwashers to the victims terminated the restitution order, and therefore Reiner’s argument is moot. We disagree.
Several months after the restitution hearing, on September 19, 2006, the trial court ordered the Los Angeles Police Department to return the four Viking dishwashers to the victims. Also, the January 26, 2007, abstract of judgment did not make any reference to the $4,780 restitution order. The People contend that these two documents “necessarily withdrew or terminated the monetary restitution order.”
In response, Reiner points to a January 22, 2007, minute order, which describes Reiner’s presentence credits and adds, “All other orders are to remain in full force and effect.” Reiner argues that this minute order belies any design on the trial court’s part to vacate its previous restitution order.
The September 2006 order to return the dishwashers does appear to be legally inconsistent with the April 2006 restitution order (People v. Rivera (1989) 212 Cal.App.3d 1153, 1162), but it does not expressly vacate that order. The abstract of judgment likewise does not vacate—or even mention—the restitution order. Reiner’s challenge to the restitution order therefore is not moot.
DISPOSITION
The April 28, 2006, restitution order is reversed, and the case is remanded with directions for the trial court to enter a new order vacating the restitution order and to send a copy of the new order to the Department of Corrections.
We concur: MALLANO, Acting P.J. VOGEL J.