Opinion
A145961
02-17-2017
THE PEOPLE, Plaintiff and Respondent, v. SYLVESTER L. RICH, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 02-316208-8)
Defendant and appellant Sylvester Rich was convicted following his guilty plea of driving without a license in violation of Vehicle Code section 12500 when he was caught driving a stolen car. A charge of theft or use of an automobile was dismissed with a Harvey waiver. He challenges an order requiring him to pay $10,000 in restitution as a condition of probation to compensate the victim of the auto theft for tools and equipment missing from the stolen car. In light of the Harvey waiver, the award of restitution was permissible. So, we affirm.
BACKGROUND
On January 20, 2014, the victim's car was stolen by two women he had invited to his apartment. It was recovered two days later when a computer in a patrol car alerted a San Pablo police officer that he had passed a stolen car. The officer pulled up behind the car, and the driver exited quickly. The officer ordered the driver to the ground. It was Rich. When he went to the ground Rich dropped a car key. The officer retrieved it and used it to start the car. The victim came to the scene and identified the car as his. Although Rich had four other people in the car when he was detained by the officer, they were gone by the time the victim came to the scene. The victim never identified the other four occupants of the car. But he noticed that approximately $10,000 worth of tools and equipment that he used in his trade as a church organ technician were missing.
Rich was charged with theft or unauthorized use of a vehicle in violation of Vehicle Code section 10851, and unlicensed operation of a vehicle in violation of section 12500. He agreed to plead guilty to unlicensed operation of a vehicle, and the charge of theft or unauthorized use was dismissed with a waiver under People v. Harvey, supra, 25 Cal.3d 754. Restitution was disputed.
At the restitution hearing, the victim presented evidence that the property missing from his car was worth in excess of $10,000. A San Pablo police officer recounted the facts surrounding Rich's arrest, and a defense investigator contested the value of the missing property.
At the conclusion of the evidence, Rich's lawyer argued there was an insufficient factual record to hold him liable for any loss attributable to items missing from the stolen car. She also contested the value of the missing items. The prosecution pointed out that Rich's plea was taken with a Harvey waiver to the charge of theft or unauthorized use of a vehicle. A short colloquy ensued between the court and defense counsel in which the court indicated that, in light of the waiver, counsel's argument based upon the record seemed without merit. The prosecutor also argued the facts were sufficient to hold Rich responsible for the full measure of restitution because he seemed to be evading the officer and dropped the car keys on the ground when he was arrested.
After taking the matter under submission, the court awarded the victim $10,000 in restitution. The court determined that the award for the missing tools was warranted because the restitution statutes are to be interpreted liberally and broadly in favor of crime victims, and the loss was reasonably related to the dismissed count of theft or unauthorized use of a vehicle. Rich appealed.
DISCUSSION
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] 'The court may impose and require . . . [such] reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.' (Pen. Code, § 1203.1, subd. (j).) The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' [Citation.] As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or ' " 'exceeds the bounds of reason, all of the circumstances being considered.' " [Citations.]' [Citation.]
". . . California courts have long interpreted the trial courts' discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation] and by conduct resulting in an acquittal [citation]. There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 [footnote omitted.].)
An award of restitution as " '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. . . ." ' " (People v. Anderson (2010) 50 Cal.4th 19, 32 (citing People v. Lent (1975) 15 Cal.3d 481, 486) [Lent test].) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (People v. Olguin (2008) 45 Cal.4th 375, 379.)
Rich's Harvey waiver covered the charge of theft or use of an automobile in violation of Vehicle Code section 10851. Now he argues the award of restitution for the missing property was improper because "there was no evidence [he] had anything to do with the unlawful taking of the car." Maybe not, but in light of the Harvey waiver, we apply the rule announced by our colleagues in Division Two in People v. Weatherton (2015) 238 Cal.App.4th 676. The prosecution is not "required to prove the corpus delicti of the dismissed counts, whether by a preponderance of the evidence or other standard, above and beyond what was produced at the preliminary examination" (id. at p. 685), and the defendant is not entitled to a "reopening" of "the actual existence or occurrence of a criminal act as alleged in a dismissed count" (id. at p. 683). In other words, after a valid Harvey waiver, "[o]nly the amount of . . . restitution" remains at issue, not the victim's "entitlement to what restitution could be proven." (Id. at p. 686.) We have no reason to look behind the Rich's Harvey waiver and put the prosecution to additional proof. As observed by the court in Weatherton, doing so "would not only be contrary to the plain logic of Harvey, it would result in absurd consequences—and largely strip Harvey of its intended utility." (Id. at p. 683.)
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
McGuiness, P.J.
/s/_________
Pollak, J.
People v. Harvey (1979) 25 Cal.3d 754.