Opinion
D072982
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. BRANDY B. SCHAEFFER, Defendant and Appellant.
Aurora Elizabeth Bewicke under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity A. Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN37125) APPEAL from a judgment and order of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed. Aurora Elizabeth Bewicke under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity A. Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Brandy B. Schaeffer and a codefendant were arrested after they were found sleeping in a car full of other people's belongings, drug paraphernalia, and burglary tools. At her April 5, 2017 arraignment on several theft-related charges, Schaeffer entered a guilty plea to one count of obtaining the personal identifying information of 10 or more individuals, with an intent to defraud. (Pen. Code, § 530.5, subd. (c)(3), count 4; all further statutory references are to the Penal Code unless noted.) In exchange for her guilty plea, the People requested that the trial court dismiss the balance of the charges against her, which was granted. (§ 496, subd. (a) [receiving stolen property, count 1]; § 459 [vehicular burglary, count 2]; § 530.5, subd. (a) [use of personal identifying information of another, count 3]; § 466 [misdemeanor possession of burglary tools, count 8].) In connection with the plea and dismissal, Schaeffer waived certain rights. These included a waiver under People v. Harvey (1979) 25 Cal.3d 754 (Harvey) [allowing the sentencing court to consider facts supporting dismissed counts]).
Schaeffer's codefendant Walker Curry Dunevant (the codefendant) was likewise charged with the same counts 1, 2, 3, 4, and 8, along with three other individual drug charges (which we need not summarize here).
Schaeffer was placed on three years of formal probation, subject to certain terms and conditions. After holding a restitution hearing on October 11, 2017, the trial court issued a restitution order in the amount of $2,044. Schaeffer's appeal challenges only the restitution order, contending the court abused its discretion in setting the amount at $2,044 because that (1) included amounts for which her responsibility was not proven, thus exceeding the scope of her Harvey waiver, (2) was not reasonably related to her own conduct under the facts as presented, thus failing to meet the proper statutory purposes of restitution as a condition of probation, and (3) represented an excessive fine, by exceeding the initial recommendation made by the probation officer and thus being imposed without adequate notice and due process. We conclude these contentions lack merit and affirm the judgment.
I
BACKGROUND AND RESTITUTION HEARING
The factual basis for Schaeffer's guilty plea was set out in the probation report. When she and her codefendant were arrested after being awakened while sleeping in his car, a search of the vehicle's contents disclosed that they had "a large quantity" of checks, bank and credit cards in the names of other individuals, both male and female, and some purses, one or two California driver's licenses in the name of Ms. P., a gold baby bracelet, $51 cash, someone else's FedEx box, and some drug paraphernalia. Although the codefendant was wearing a small belt pack containing methamphetamine and a "blue pry object," Schaeffer did not have any weapons or contraband on her, but a "small blue pry object" was stored in the passenger's side door next to where she had been sleeping. The officers contacted Ms. P., who had called police earlier to report that her car had been burglarized and some items were missing. Some items belonging to Ms. P. were returned, including her licenses, her son's gold baby bracelet and her husband's paycheck.
Schaeffer was charged with several theft-related offenses, including receipt of stolen property belonging to Ms. P. of a value over $950, in violation of section 496, subdivision (a). In her Harvey waiver, she agreed that the sentencing judge "may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when granting probation, ordering restitution or imposing sentence."
In preparation for sentencing, probation department representatives contacted Ms. P. and prepared a report. Ms. P. said she was still missing several items including a pair of $500 prescription glasses, two electronic car keys and miscellaneous small things, for a total estimated loss of about $995. She also told the representative that two days after her car was burglarized she had a miscarriage. Probation department representatives were unable to contact a man whose name was on a credit card found in the car.
Schaeffer made a statement to the probation officer, saying she had been using methamphetamine the night before her arrest and she "did not steal any of the items found inside" the codefendant's car. The report recommended that the court grant her formal probation, on conditions including her payment of $995 in restitution to Ms. P. At sentencing, the trial court placed Schaeffer on formal probation and ordered a restitution hearing for issuance of an order determining the amount.
At the restitution hearing in October 2017, the court heard testimony from Ms. P., who explained that the electronic key for her car was still missing, as well as one from her mother's car that was also parked outside Ms. P.'s house that day. On the day of the burglary, Ms. P. missed work to arrange to have both her vehicle and her mother's vehicle towed to the dealership so that the keys could be reissued and reprogrammed. The towing costs for two cars was $8 per mile for 14 miles, plus a $75 fee each, for a total of $374 in towing. After consulting receipts, she stated that the replacement amount for keys to her car was $230.54, plus a vehicle reprogramming fee of $135. For her mother's car, those expenses amounted to $197.21, plus the vehicle reprogramming fee of $135.
Ms. P. also testified that she was missing a pair of designer (Michael Kors) prescription glasses, and according to a receipt, it would cost $749 to replace them because of the special lenses she required. She did not know Schaeffer and could not be sure who burglarized the car. Ms. P. testified she was raising three children and before the burglary, she had already been suffering from depression and stress. After the burglary, her doctor told her to stay home and rest. A few days later, the miscarriage started and she was not sure what caused it. She missed a total of 29 days of work, for which she ordinarily earned $14 per hour. The prosecutor calculated that Ms. P.'s lost wages were an estimated $3,248. The total amount of restitution requested for her losses was $5,068.75.
At the close of the evidence, the trial court asked the prosecutor to provide an itemization of the restitution amounts requested. She handed some papers to the judge, and defense counsel agreed that those were notes being presented, but he could not be sure that they were the same as the evidence that was presented. The court responded that it was trying to verify the lost wages amount being claimed, $3,248, with the rest of it being property items and towing, etc. No such notes were placed in the record. The court then heard argument, in which the prosecutor relied on section 1192.3 to contend that Schaeffer's conduct was a substantial factor in causing Ms. P.'s property loss and lost wages. The full $5,068.75 restitution amount was requested, based on Schaeffer's Harvey waiver about the dismissed charges that involved burglary and burglary tools.
In response, defense counsel pointed out that Schaeffer had not pled guilty to the vehicle burglary, and contended there was no evidence connecting her to it. Counsel argued that the prosecutor had not shown that Schaeffer caused either the burglary or the miscarriage, to justify the property and lost wages claims. In rebuttal, the prosecutor argued that Schaeffer had possession of over 10 people's identity cards and items, "which speaks to the burglary."
After taking the matter under submission, the court issued a written order that awarded $1,820 for "personal property damage," plus $224 for Ms. P.'s two days of lost wages. The court expressly found that additional wages restitution was not warranted and not reasonably related to the crime. The total of $2,044 was to be paid to probation, with payments to be applied to victim restitution first. Schaeffer appeals.
II
LEGAL PRINCIPLES AND REVIEW
"[W]hen a defendant is convicted of a crime involving a victim who 'has suffered economic loss as a result of defendant's conduct' [citation], the court must require the defendant to pay full restitution directly to the victim or victims of the crime 'unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.' [Citation.] A 'defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.' " (People v. Giordano (2007) 42 Cal.4th 644, 651-652.)
Under section 1192.3, following a Harvey waiver, restitution may be ordered in connection with a charge that is dismissed pursuant to a plea bargain, as long as there is a factual basis for the plea and the charges arose "from the same or related course of conduct by the defendant . . . ." (§ 1192.3, subd. (a).) Absent such a waiver, a defendant who enters into a plea bargain reasonably expects there will be "no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (Harvey, supra, 25 Cal.3d at p. 758; People v. Goulart (1990) 224 Cal.App.3d 71, 80 (Goulart).)
Under sections 1203.1 and 1202.4, restitution orders serve the purposes of both criminal rehabilitation and victim compensation. (People v. Anderson (2010) 50 Cal.4th 19, 29 (Anderson).) In the context of a grant of probation, section 1203.1 provides the court with some flexibility and discretion to encourage a defendant's reformation "as the circumstances of his or her case require." (Anderson, supra, at p. 29; § 1203.1, subd. (j).)
Schaeffer argues that de novo review on appeal is appropriate based on her statutory interpretation claims about the proper scope and purposes of restitution orders. (§§ 1192.3, 1203.1; see People v. Garcia (2011) 194 Cal.App.4th 612, 617.) In essence, these claims are fact-specific and directed toward showing an alleged lack of supporting evidence for the trial court's exercise of discretion, and a consequent due process denial. Such arguments are properly evaluated under the abuse of discretion standard. (People v. Chappelone (2010) 183 Cal.App.4th 1159, 1173; People v. Mearns (2002) 97 Cal.App.4th 493, 498 (Mearns).) A court abuses its discretion only if its decision is arbitrary or capricious or based on a demonstrable error of law. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382 (Akins); People v. Jennings (2005) 128 Cal.App.4th 42, 49.)
"A reviewing court may not invalidate any condition of probation, including restitution, unless the condition '(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 . . . .' " (Goulart, supra, 224 Cal.App.3d 71, 78.) Restitution orders are affirmed on appeal if the record shows there is a rational and factual basis for the award. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542; Akins, supra, 128 Cal.App.4th at p. 1382.)
III
ANALYSIS
A. Scope of Harvey Waiver
Schaeffer contends the trial court erroneously ordered her to pay $2,044 in restitution, because this amount included items not encompassed within her Harvey waiver. She points to her defense counsel's objection to the calculations offered by the prosecutor on the amount of restitution requested, as preserving her claim that there is no factual basis for the order. In particular, she contends the plea she entered only dealt with fraudulently obtaining the personal identifying information of 10 or more persons, and no evidentiary showing was made that she, as opposed to her codefendant, was personally connected to the dismissed counts that pertained to receiving stolen property and burglary.
In the probation report, the officer described the sheriff's investigation and arrest of Schaeffer and the codefendant, following the search of the car in which they had been sleeping. Several items found belonged to Ms. P., including her driver's license and a purse that had her work identification card in it. When the deputy checked the current pending call list, he found that Ms. P. had called in to report items that were stolen from her vehicle, including the purse, driver's license, bank cards and other items. The evidence before the trial court at the restitution hearing included Ms. P.'s testimony that the baby bracelet found in the car was her son's and it was among the items returned to her, along with her husband's paycheck.
In determining the amount of restitution due, the court can reasonably consider dismissed charges and allegations and can consider damage that may have been done by others in the joint commission of a crime. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121-1122 (Carbajal); Goulart, supra, 224 Cal.App.3d 71, 79; People v. Baumann (1985) 176 Cal.App.3d 67, 75.) Restitution may be ordered pursuant to a dismissed charge that arose "from the same or related course of conduct by the defendant . . . ." (§ 1192.3, subd. (a).) From the material presented, the trial court could reasonably find by a preponderance of the evidence that Schaeffer had a substantial role in causing the loss of Ms. P.'s property, since she was found in a car containing it, which also contained burglary tools that could have been used to open up Ms. P.'s locked car. " ' "The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.' " ' (People v. Holmberg (2011) 195 Cal.App.4th 1310, 1321 (Holmberg).)
The substantial factor test was satisfied here. Although Schaeffer's guilty plea was limited to the charge of wrongfully taking multiple people's identifying information, Ms. P.'s own identifying information was among that found in the car where Schaeffer was sleeping. The prosecutor made a prima facie showing that Ms. P.'s property losses were incurred as a result of criminal acts in which Schaeffer was a participant to some degree, since she was found in constructive possession of the stolen items. (People v. Taylor (2011) 197 Cal.App.4th 757, 761 (Taylor).) The court had a substantial basis from the sheriff's report information contained in the probation report to conclude that Schaeffer and the codefendant were most likely working together to fill his car with stolen items, some of which were directly connected to Ms. P. (People v. Land (1994) 30 Cal.App.4th 220, 228.) The dismissed charges were based on conduct that was related to the course of conduct to which she pled guilty. (§ 1192.3, subds. (a), (b).)
Further, the record does not support Schaeffer's claim that the trial court erroneously held her responsible for an excessive amount of the lost wages that were a consequence of the miscarriage that Ms. P. suffered. The court made an express finding, based on the testimony presented, that the restitution for her wages should be limited to two days ($224). Ms. P. testified that she had to take time off from work on the day of the burglary and the day afterwards, because of her inability to drive without her car keys and her increased stress, and the court could reasonably conclude that some lost wages were directly attributable to this set of property losses. The court declined to find that Ms. P.'s other health-related absence from work was "reasonably related to the crime," which was an appropriate interpretation of the evidence. We conclude the restitution order was sufficiently based upon the evidence presented and does not represent any misinterpretation of the scope of the Harvey waiver.
B. Statutory Purposes of Restitution Orders
Schaeffer next argues the order was not reasonably related to her own conduct under the facts as presented, and thus it fails to meet the statutory purposes of restitution as a condition of probation, as set forth in section 1203.1, subdivision (j). Probation conditions may appropriately be aimed at fostering rehabilitation and protecting public safety, and may include an order for restitution for any injury done to any person resulting from the defendant's breach of legal standards. (§ 1203.1, subd. (j).) "Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [or] by conduct underlying dismissed and uncharged counts . . . ." (Carbajal, supra, 10 Cal. 4th at p. 1121.)
Section 1203.1, subdivision (j) provides in relevant part: "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 . . . ." --------
Although the People argue that Schaeffer's record based and constitutional challenges to the amount of the award should be deemed forfeited, the respondent's brief goes on to address the merits. We agree with Schaeffer that since her defense counsel raised objections at the hearing to the factual and legal basis of the restitution request, by asking about the calculations, she preserved these challenges to the restitution order. (Holmberg, supra, 195 Cal.App.4th 1310, 1320 [defendant must come forward to challenge requested amount].) As explained above, we have not found the restitution order misinterpreted the proper scope of Schaeffer's Harvey waiver, and also will consider whether it serves the legitimate purposes of probation conditions, as directly relating to offenses she has committed or agreed may be considered. (Goulart, supra, 224 Cal.App.3d at p. 79.)
A probation condition must be " 'reasonably related to the crime of which the defendant was convicted or to future criminality.' " (Carbajal, supra, 10 Cal.4th at p. 1121.) A victim's right to restitution "is to be broadly and liberally construed." (Mearns, supra, 97 Cal.App.4th 493, 500.) Restitution awards should not be diverted from the victim to satisfy the claims of third parties. (Anderson, supra, 50 Cal.4th 19, 33.) However, "[t]here 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 damage that might be recoverable in a civil action." (Id. at p. 27.)
Schaeffer argues that in view of the limited facts about the charge to which she pled guilty, theft of multiple personal information items with intent to defraud, the court should not have required her to compensate Ms. P. for other items, the lost glasses or the missing car keys, plus time spent away from work to reactivate the keys. This claim disregards the showing made by the prosecutor that connected Schaeffer to these particular losses suffered by Ms. P., since Schaeffer (along with her codefendant) was in constructive possession of other items taken from Ms. P.'s car at the same time, but that were later returned. The sentencing court did not have to accept Schaeffer's version that she did not steal any such items, in view of the ways in which she was shown to be connected to the codefendant's car and to Ms. P.'s missing property
The statutorily declared purposes of probation conditions for payment of restitution include requirements that a defendant bear responsibility for injuries resulting from her admitted or proven breaches of legal standards. (§ 1203.1, subd. (j).) The trial court had an adequate basis in the evidence to make this discretionary order requiring Schaeffer to compensate the victim for items shown to be connected to the dismissed charges, receiving stolen property and burglary.
C. Notice and Due Process
Schaeffer next argues the restitution order represented an excessive fine, since it exceeded the probation officer's initial recommendation of $995. She argues the larger amount, $2,044, was imposed without adequate notice, largely because she was not afforded an opportunity to review the prosecutor's sheet of calculations of the requested amounts. She also argues she should not be held responsible for all the loss, in the absence of her codefendant during these proceedings.
The standard of proof at the restitution hearing required a showing by a preponderance of the evidence. (Holmberg, supra, 195 Cal.App.4th 1310, 1319.) Here, Ms. P. testified about the expenses she incurred in replacing her family's two sets of missing car keys, and referred to receipts that amounted to much more than the $400 that she originally gave the probation officer as their value. The probation report noted that Ms. P. worked two jobs and was placed under added stress after the burglary. Her expenses included two missed days of work when the burglary occurred and the day afterward, since she did not have a car to drive. She also testified it would cost $749 to replace her missing prescription glasses that had special lenses and provided a receipt, even though she had earlier given the probation officer an estimate of $500 for that particular loss.
At the hearing, defense counsel cross-examined Ms. P. on her testimony, and she agreed that she did not know why the miscarriage occurred after the burglary. In argument, defense counsel contended that an insufficient factual and legal showing had been made about Schaeffer's possession of anything beyond the admitted identity theft items, such as any participation in the burglary of Ms. P.'s car. The prosecutor responded that the identity theft offense "speaks to the burglary" and was relevant to restitution. At the conclusion of testimony, the court specifically inquired about the itemization of the restitution amounts, to clarify the lost wages being claimed. The court then took the matter under submission and issued a written order, addressing the proper limits on the wages restitution request and specifying that $1,820 personal property damages should be awarded.
A trial court may order direct victim restitution to be paid by codefendants jointly and severally, to avoid a double recovery. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) "Of course, each defendant is entitled to a credit for any actual payments by the other." (Ibid.) Here, the court did not have the codefendant before it at the time of the hearing and Schaeffer's counsel did not seek an order imposing joint and several liability for any restitution ordered. Under the circumstances, the court did not have an opportunity to address the codefendant's potential degree of responsibility for the loss. It was not an abuse of discretion to consider Schaeffer as an individual. (See § 1202.4, subds. (f) and (j) [victim restitution paid is to be credited to any other defendant's judgments for the same losses that arose out of the offense]; People v. Arnold (1994) 27 Cal.App.4th 1096, 1100 [construing statutory term "defendant" as including "codefendant" in this circumstance].)
We do not reweigh the evidence on appeal, but determine whether the trial court's decision is based on substantial evidence and falls within the scope of its sound discretion. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) The court made a well-informed exercise of discretion that has a substantial basis in the record, and that is consistent with Schaeffer's individual circumstances as demonstrated at the hearing. (Carbajal, supra, 10 Cal.4th at p. 1121.) We affirm.
DISPOSITION
The judgment and order are affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. AARON, J.