Opinion
C083338
11-07-2017
THE PEOPLE, Plaintiff and Respondent, v. NATHAN EUGENE SULLIVAN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TF14000590A)
Following a jury trial, defendant Nathan Eugene Sullivan was convicted of first degree burglary (Pen. Code, § 459; unless otherwise stated, statutory section references that follow are to the Penal Code). The trial court sentenced defendant to a four-year term in state prison, suspended execution of sentence, and placed defendant on five years' formal probation. As a condition of his probation, defendant was ordered to pay $5,000 in victim restitution, with joint and several liability between defendant and his codefendant.
On appeal, defendant contends the restitution order was unauthorized. We affirm the judgment.
FACTS AND PROCEEDINGS
A. The Prosecution Evidence
J. Ross and her husband lived in Danville in 2014 and owned a vacation home on Solvang Way in Truckee. The home was in a neighborhood where the houses are about 20 to 30 feet apart and there were no fences between them. The Ross' went to the Truckee home once or twice a month. The home was a few minutes' walk from Peregrine Drive in Truckee.
Early in February 2014, the Ross' locked up the Truckee home and returned to Danville. The home had no security system or any reinforcement for the standard door and window locks. It was clean when they left. When J. Ross returned on March 2, 2014, she tried to enter through the garage by using a key code. The door made a strange noise and would not open, but opened after a second attempt. J. Ross later determined that the left side of the garage door was damaged, as if a vehicle too large for the garage tried to enter and damaged the door.
Upon entering the garage, J. Ross noticed a gas can and part of a wooden shelf or box, items that did not belong to her or her husband. An open beer bottle was on a hockey table in the garage; it was not there when she left in February, and was not a brand they kept in the house. Tools, snow shoes, and skis were missing from the garage. J. Ross entered the living room from the garage and found it was a "big mess," containing beer bottles, a cigar, trash, and other "stuff." She noticed the stereo equipment and a television projector were missing. An empty bottle of Vodka from the cupboard was in the living room. Concerned that intruders might still be in the house, J. Ross went to her car and called the police.
The police arrived in about 15 minutes and accompanied J. Ross through the house to survey the damaged and missing property. In addition to the projector and stereo, a 56 inch plasma television, a blue-ray DVD player, around 200 DVDs, linens, and a full-sized washer and dryer were missing. There was damage to the hardwood floors, tile, and the stairwell, likely from the washer and dryer being dragged out of the second floor.
J. Ross found trash, a candy wrapper, and cigarette butts in various rooms of the previously clean house. One of the bathrooms was dirty and it appeared that someone slept in one of the beds. Closets were disturbed throughout the house.
Police found items not belonging to the Ross' in the house: a screwdriver, a Marlboro cigarette butt, and a Chapstick tube. A window screen was loose, but the screen was still in place. Officers found, on the garage floor, a casino frequent player card in the name of Carlos Woodbridge. J. Ross was not familiar with that name. At trial, she did not recognize defendant or his codefendant.
No one had permission to enter their home while they were away. Only she, her husband, and her children knew the code to the garage door. A handyman named Charlie did some work for them, but came only when they were at the house. Charlie also had the code for the garage.
Kristina Herrmann lived in Sacramento and has a son with Woodbridge. Defendant and Woodbridge were close friends. Woodbridge smoked Newport cigarettes while defendant smoked Marlboros. Woodridge was unemployed and defendant worked in construction in 2014. Woodbridge had player cards for some casinos in Reno.
From Saturday, February 22, 2014 to Tuesday, February 25, 2014, Herrmann's brother, Brooke Johnson rented a vacation home on Peregrine Drive in Truckee. Johnson drove there with his son, girlfriend Melissa, and mother Marlee Herrmann. Herrmann's father, a truck driver, drove his truck to Fallon, Nevada and waited there until Johnson picked him up. Herrmann drove to the rental with Woodbridge, their son, defendant, and Herrmann's sister Nicole. There was plenty of luggage in Herrmann's car.
According to Herrmann, defendant and Woodbridge walked through the neighborhood and played disk golf on Sunday. They were gone for a couple of hours and did not appear to be very drunk when they returned. The group went sledding on Monday. Woodbridge had trouble breathing during the trip; he was later diagnosed with congestive heart failure. Sometime after the trip ended, defendant learned a casino had found his lost phone. Woodbridge and defendant returned to Reno to get the phone, and while there, used Woodbridge's player cards.
Johnson testified that at some point, defendant and Woodbridge left to buy cigarettes, and did not return for four to five hours. On Monday, defendant and Woodbridge left before Johnson awakened. When they returned, they told him they played disk golf. According to Marlee Herrmann, Woodbridge and defendant stayed in the cabin almost the entire time, except once when they walked to the store.
DNA on a cigarette butt and two beer bottles found in the home matched Woodbridge's profile. There was DNA from two individuals on the vodka bottle; Woodbridge could not be ruled out as a major contributor and defendant could not be ruled out as a minor contributor.
B. The Defense Evidence
Defendant testified that he went on the trip to Truckee with Woodbridge but barely remembered it. He had two coffee mugs of wine after unloading the car. He and Woodbridge told everyone they were going to the store but went to the Circus Circus casino in Reno and gambled. Defendant had a few more than 15 Jack and Cokes while he was there. He did not remember going to bed. The next morning, he and Woodbridge got up and played disk golf. He still had "a good buzz on."
When one of the disks went into a backyard, defendant asked a woman in a white T-shirt standing outside the garage if he could retrieve the disk. The woman invited them into the garage and offered them beer and vodka. She went into the house to get the alcohol while defendant and Woodbridge stayed in the garage. There were no cups, so they drank the vodka from the bottle. Defendant and Woodbridge stayed for an hour and left. Defendant had a "real good buzz on" and had to walk around a few times before finding the cabin where they were staying.
Defendant lost his phone during the trip and his girlfriend discovered Circus Circus had found it. He, his roommate, and Woodbridge went up to the casino in the roommate's Honda Accord. They were there for an hour and then returned.
Woodbridge testified that he and defendant went to Reno the first night of the visit to Truckee. Defendant got "pretty drunk" that night and they played disk golf the next morning. They smoked marijuana from a pipe as they played golf and walked. A woman in the garage of a house asked if she could smoke the marijuana Woodbridge was smoking. He and defendant let her smoke marijuana and she gave them drinks. Woodbridge smoked cigarettes in the garage. Woodbridge and defendant drank beer and vodka and then left. They did not go in the house. Woodbridge thought the player's card fell out of his pants, the same pants he wore to Reno the prior day.
Woodbridge, defendant, and defendant's roommate drove to Reno on February 27, 2014, to retrieve defendant's cell phone in the roommates' Accord. Woodbridge started a player's card at the El Dorado, Circus Circus and Silver Legacy casinos on that trip. His Cal-Neva card, the one found in the garage, was opened in 2012.
DISCUSSION
The probation report noted that the Ross' reported $27,421 in stolen property and damage to their home, which was covered by insurance, except for a $5,000 deductible, which they sought in restitution. As a condition of probation, defendant was ordered to pay the $5,000, jointly and severally liable with codefendant Woodbridge. At the sentencing hearing, the trial court asked defendant whether he agreed to the restitution order and he replied, "Yes, sir."
Defendant contends the restitution order is an invalid condition because the damages for which restitution was ordered were not related to his crime. He acknowledges that the consumption of vodka in the home supports a finding that he entered the home with an intent to steal as required by the elements of first degree burglary. However, he claims that the evidence does not show that he caused the other losses to the Ross' home. Since he was not convicted of a theft offense, defendant concludes the restitution order was unauthorized and must be stricken.
As a preliminary matter, we note that defendant did not object to the restitution order entered as a condition of probation, which ordinarily would forfeit his contention on appeal. (People v. McCullough (2013) 56 Cal.4th 589, 594.) Since defendant also claims that the failure to object constitutes ineffective assistance of trial counsel, we address his claim on the merits.
"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.]" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Section 1203.1, subdivision (b) requires the court to consider whether defendant should make restitution to the victim, and subdivision (j) states: "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 . . . ." A sentencing court's broad discretion to impose reasonable conditions of probation "includes ordering restitution, if such a condition is reasonably related to the crime of which the defendant was convicted or to future criminality. [Citations.]" (In re I.M. (2005) 125 Cal.App.4th 1195, 1209.)
We review restitution orders for abuse of discretion, and we will not reverse unless the order is arbitrary or capricious. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. " '[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]' [Citation.]" (Ibid.) 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. (People v. Fulton (2003) 109 Cal.App.4th 876, 886.)
Some person or persons broke into the Ross' home between when they left in early February 2014 and when they returned on March 2, 2014. Defendant and Woodbridge were in a home near the Ross' home during that time, and later went to nearby Reno, also during that time. Their DNA was found on objects in the home, and the Ross' did not know them or allow them in the home when it was unoccupied.
The jury found beyond a reasonable doubt that defendant entered the Ross' home with an intent to commit theft or any felony, and defendant does not contest the sufficiency of the evidence for this finding. While defendant was not found possessing any of the items missing from the home, it is reasonable to infer that defendant and Woodbridge, the only people to have been proven to have illegally entered the home with an intent to steal during that time, were the people who took them. It is unlikely that defendant and Woodbridge committed the burglary while on the Truckee vacation; the car they came in did not have room to store the stolen items, and none of the people who stayed with them saw them in possession of such property. However, defendant and Woodbridge admitted going to Reno during the time the Ross home was vacant. The trial court could reasonably conclude that defendant and Woodbridge committed the burglary at this time. Since defendant admitted he had access to a pickup truck with a trailer through his work, he had a vehicle to take the items stolen from the Ross home.
Under the facts adduced at the trial, the Ross' claim for restitution constituted a prima facie showing of economic loss from defendant's crime. Defendant presented no contrary evidence, and it was not an abuse of discretion for the trial court to order victim restitution for the insurance deductable as a condition of probation.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: BLEASE, Acting P. J. MAURO, J.