Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA048843. Thomas R. White, Judge.
Ann-Marissa Cook, 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, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
Defendant Jesus Santana appeals from a conviction of one count of burglary in violation of Penal Code section 459, with a finding that another person, not an accomplice, was present in the residence during the commission of the offense pursuant to Penal Code section 667.5, subdivision (c)(21). Defendant contends the trial court erred in imposing restitution of an alarm system to the victim on a dismissed count of burglary under a plea agreement. Defendant argues that section 1202.4, subdivision (f)(3)(J) specifically limits awards of alarm systems as restitution to the offenses listed in section 667.5, subdivision (c), and on the dismissed count there was no evidence in the record anyone was in the home at the time of the burglary. We affirm.
All statutory references herein are to the Penal Code, unless otherwise noted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The probation report discloses that on April 12, 2010, defendant and two accomplices burglarized three residences. The probation report indicates that while burglarizing the residence charged in count 1, the Gutierrez residence, the owner heard his dog barking, woke up and saw a male Hispanic crouching by the bathroom cabinets. The suspect ran away, and the victim saw another person stick his head through an open sliding door. The victim went outside, saw three persons run away, and called the police. Police apprehended defendant and his two accomplices, and recovered several items stolen from two prior burglaries committed that same day (later charged as counts 2 and 3). Police contacted the victims of the prior burglaries and confirmed their homes had been burglarized.
A felony complaint filed April 14, 2010, alleged three counts of first degree burglary (one count as to each of the three burglaries) pursuant to section 459, and alleged that the crimes were violent felonies within the meaning of section 667.5, subdivision (c)(21) in that another person, not an accomplice, was present in the residence during the commission of the offense.
Section 667.5, subdivision (c)(21) defines a violent felony for purposes of that section as “[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.”
At the preliminary hearing, defendant pleaded no contest to count 1 (burglary of the Gutierrez residence), the court accepted his plea and found him guilty. As to count 1, defendant admitted the allegation there was another person present in the residence at the time of the burglary within the meaning of section 667.5, subdivision (c). Defendant’s counsel stipulated that there was a factual basis for the plea in the police reports. The court accepted defendant’s Harvey waiver as to restitution, and advised defendant he would be sentenced to state prison for two years, and would have to pay for losses arising from the dismissed counts. Pursuant to defendant’s plea, counts 2 and 3 were dismissed.
People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey).
The court denied probation and sentenced defendant to the low term of two years, gave him 44 days of presentence custody credit, and ordered a $30 court security assessment (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code, § 70373), a $400 restitution fine (§ 1202.4, subd. (b)), a $38 fine (§ 1202.5), and imposed and stayed a $400 parole restitution fine (§ 1202.45).
At the restitution hearing, the victims on count 3, Feliciana Barajas and Adriana Rueda, requested reimbursement for lost wages of $420, a Canon camera in the sum of $350, and a total of $2,799 for an alarm system, consisting of a $279 installation charge and $42 per month for five years. Defendant’s counsel argued that without proof of a person, other than an accomplice, being present during the burglary, the victims could not be awarded an alarm system under section 1202.4, subdivision (f)(3)(J). In particular, defendant argued that defendant had pleaded no contest to count 1 and the person present allegation as to that count, but not as to count 3. Therefore, because there was no evidence the victims were at home at the time of the robbery in count 3, they were not eligible for restitution under section 1202.4, subdivision (f)(3)(J). After taking the matter under submission, the court ordered defendant to pay $2,799 to Rueda for the installation of an alarm system, $420 for lost wages, and $350 for a Canon camera.
The victim on count 1, Maurice Gutierrez, did not lose any property. The victim on count 2, Emma Yanez, had her property returned by police the date of the incident.
Section 1202.4, subdivision (f)(3)(J) provides restitution may include “[e]xpenses to install or increase residential security incurred related to a crime, as defined in subdivision (c) of Section 667.5, including, but not limited to, a home security device or system, or replacing or increasing the number of locks.”
DISCUSSION
Defendant contends the trial court awarded legally unauthorized restitution in the amount of $2,799 for an alarm system to the victims on dismissed count 3 because the prosecution did not charge or prove that another person, other than an accomplice, was present during the commission of the burglary charged in count 3, as is required by section 1202.4, subdivision (f)(3)(J). Respondent argues that pursuant to the Harvey waiver, the court was permitted to use facts underlying the dismissed counts to impose restitution, and did not need to prove defendant’s liability for the dismissed offense.
In Harvey, supra, 25 Cal.3d 754, the court held that in the absence of any “contrary agreement, ” a court cannot consider at sentencing the facts underlying nontransactionally related counts dismissed as part of a plea bargain. (Id. at p. 758.) The trial court may order restitution on dismissed counts where the negotiated disposition includes a Harvey waiver. The waiver may also encompass unfiled charges, and when it does, the court may base restitution on the defendant’s uncharged offenses and order restitution paid to the victim of a dismissed charge. (People v. Campbell (1994) 21 Cal.App.4th 825, 830; People v. Goulart (1990) 224 Cal.App.3d 71, 79.)
Restitution is constitutionally and statutorily mandated in California. (People v. Mearns (2002) 97 Cal.App.4th 493, 498; Cal. Const., art. I, § 28.) This mandate is implemented in section 1202.4, which provides in part that “a victim of crime 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.” (§ 1202.4, subd. (a)(1).) The restitution statute directs the trial court to “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 unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (§ 1202.4, subd. (f).) Restitution “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.” (§ 1202.4, subd. (f)(3).)
In addition to compensating the victim, a restitution order is intended to rehabilitate the defendant and to deter the defendant and others from future crimes. (People v. Crow (1993) 6 Cal.4th 952, 957; see People v. Dehle (2008) 166 Cal.App.4th 1380, 1386; People v. Moser (1996) 50 Cal.App.4th 130, 134.) “Restitution ‘is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.’ [Citations.]” (Moser, at pp. 135–136.)
The statutory restitution provisions are to be construed broadly to achieve the goals of public safety, victim compensation and offender rehabilitation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1126; People v. Mearns, supra, 97 Cal.App.4th at pp. 500–501.) We review restitution orders for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) “Under this standard, while a trial court has broad discretion to choose a method for calculating the amount of restitution, it must employ a method that is rationally designed to determine the surviving victim’s economic loss. To facilitate appellate review of the trial court’s restitution order, the trial court must take care to make a record of the restitution hearing, analyze the evidence presented, and make a clear statement of the calculation method used and how that method justifies the amount ordered.” (Id. at pp. 663–664.) If there is a “‘factual and rational basis’” for the amount ordered, no abuse of discretion is present. (Mearns, at p. 499; Carbajal, at p. 1125.) Any interpretation of section 1202.4 that limits a victim’s rights to restitution “would be in derogation of the expressed intent and purposes of Proposition 8 and the provisions adopted by the Legislature to implement this measure.’ [Citation.]” (Carbajal, at p. 1122.)
Section 1202.4, subdivision (f)(3) lists a number of losses that qualify as recoverable economic losses. The list, however, is not exclusive of all unenumerated losses, instead providing that the losses may include, but are not limited to those enumerated. (§ 1202.4, subd. (f)(3) [items constituting restitution “including, but not limited to” enumerated items].) Consistent with the mandate to interpret the restitution statute broadly, courts have upheld awards of items not specifically enumerated in subsection (f)(3). In People v. Keichler (2005) 129 Cal.App.4th 1039, the victims of a fight in which the defendant uttered racial slurs were awarded $3,119 for expenses incurred for traditional Hmong healing ceremonies. (Id. at p. 1042.) The Keichler court construed the word “loss” broadly to uphold the legislative intent that every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss, and concluded that because section 1202.4 used the language “including, but not limited to” in describing those enumerated losses, the trial court can compensate the victim for any economic loss that is proved to be the direct result of the defendant’s criminal conduct, even if not specifically enumerated in the statute. (Id. at p. 1046.) Thus, the award of expenses arising out of traditional healing ceremonies was proper because it was a result of defendant’s conduct. (Id. at pp. 1046–1047.)
In In re Johnny M. (2002) 100 Cal.App.4th 1128, the court held that Welfare and Institutions Code section 730.6, subdivision (h) governing juvenile restitution, which lists categories of compensable losses and which parallels section 1202.4, was a nonexclusive list. Johnny M. concluded the term “including” used in Welfare and Institutions Code section 730.6, subdivision (h) was similar to the terms “including, but not limited to” of section 1202.4, suggesting a legislative intent to allow broad discretion in allowing for victim’s recovery from the offender. (Id. at pp. 1135–1136.) Thus, “including” was a phrase of “enlargement, meaning the categories of economic losses explicitly identified in the statute are not exhaustive.” (In re Imran Q. (2008) 158 Cal.App.4th 1316, 1320.) Similarly, in In reM. W. (2008) 169 Cal.App.4th 1, the court interpreted Welfare and Institutions Code section 730.6, subdivision (h) to be a nonexclusive list. “The term ‘economic loss’ in the juvenile restitution statute must be given an expansive interpretation because any interpretation that limits the victim’s rights to restitution would derogate the expressed intent and purposes of [California Constitution] [a]rticle I, section 28, and the provisions of the implementing statutes.” (Id. at p. 5.) On that rationale, M.W. upheld an award of mental health services to the victim because “[i]t should surprise no one that victims of crimes often need the services of mental health professional in order to resume normal life activities.” (Id. at p. 6.)
Consistent with these mandates, the trial court was not limited to the list of enumerated items in section 1202, subdivision (f)(3) in awarding restitution to the victims of dismissed count 3. Section 1202.4, subdivision (f)(3) includes, but is not limited to, the items specified in subsection (J) and there was no statutory bar to awarding an alarm system to the victims of count 3. We therefore find no abuse of discretion in the court’s selection of this item as appropriate restitution to the victims of that burglary even though there is no evidence in the record that the victims were at home at the time defendant and his accomplices burglarized their home. An alarm system is designed to restore the peace of mind that is lost when a home, even when unoccupied at the time, is burglarized. The only way to restore this peace of mind is to fortify the victim’s home. Thus, requiring defendant to pay for an alarm system serves as rehabilitative purpose rationally related to the criminal conduct in count 3 by ensuring defendant will appreciate the harm caused to his victims by the burglary.
DISPOSITION
The judgment of the superior court is affirmed.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.