Opinion
2d Crim. No. B299152
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. STEVE MELO TEIXEIRA, Defendant and Appellant.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Kristen J. Inberg, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18F-05928)
(San Luis Obispo County)
Appellant Steve Melo Teixeira pled no contest to receiving stolen property. (Pen. Code, § 496, subd. (a).) Pursuant to a plea agreement, the trial court dismissed a second-degree burglary charge (§459) and a second receiving stolen property charge (§ 496, subd. (a).) Appellant signed a Harvey waiver as to the dismissed charges. The court suspended imposition of sentence and placed appellant on three years of formal probation. The terms of probation include victim restitution.
All further statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Two victims of uncharged burglaries sought a total of $5,741 in restitution for their property losses. The uncharged burglaries were committed on the same premises as the charged burglary. The police identified appellant as the suspect in those and other burglaries at that site. Appellant contends the trial court abused its discretion by granting the two requests. We conclude (1) the court properly relied on appellant's Harvey waiver to award restitution to the uncharged burglary victims and (2) the record provides sufficient support for the awards. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The charged burglary occurred on March 12, 2018 in unit 116 of the Space Place Mini Storage (Space Place) facility in Paso Robles. After that charge was dismissed, Jack Butler and Jason Harwell submitted claims for property losses arising from the uncharged burglaries of their Space Place units. Butler, who sought $2,600, believed the burglary of his unit occurred between April 8 and April 9, 2018. Harwell requested $3,141. The victim of the charged burglary did not seek restitution.
The charge appellant pled to, i.e., receiving stolen property (§ 496, subd. (a)), is unrelated to the Space Place burglaries. It involved receipt of a stolen bicycle taken from the victim's vehicle.
The trial court held the restitution hearing on July 15, 2019. Appellant appeared through his counsel. The court noted that the underlying factual basis for appellant's plea was Paso Robles Police Department (PRPD) report No. 18-0768. The report references other PRPD reports, including Nos. 18-8026, 18-0971, 18-0734, 18-0768, 18-0771, 18-0772, 18-0856, 18-0996 and 18-1064. Most, if not all, of these reports involved burglaries at Space Place. According to the court, a police officer reported in No. 18-0856 that there were a number of recent burglaries at Space Place and that "it appears all of the burglaries are connected with the same suspect committing all of the burglaries."
Defense counsel noted that PRPD No. 18-8026 involved Butler's unit. Counsel stated the officer who wrote that report believed Butler's burglary was related to the other Space Place burglaries and identified appellant as the suspect in those cases. The prosecutor confirmed that Butler and Harwell were "noted in [her] case file as being known victims." The PRPD reports were not admitted into evidence or provided to this court. The record also does not include appellant's plea form or a reporter's transcript of the plea hearing. The trial court's docket reflects that the plea hearing occurred on September 17, 2018, and that counsel stipulated to the factual basis for the plea and the court found such a factual basis.
The trial court granted the two victim restitution requests, finding that because the PRPD reports "formed part of the factual basis for the entry of the plea," "the Court [has] legal discretion to prescribe to conditions of probation, to foster rehabilitation, and to protect public safety." The court cited cases supporting the view "that [a] restitution order has been found proper where the loss was caused by related conduct not resulting in a conviction." The court found "that these losses are reasonably related both to the crime . . . [and] the goal of [deterring] future criminality."
DISCUSSION
This appeal presents two questions: (1) whether the trial court was allowed to consider the uncharged burglary offenses in ordering victim restitution and, if so, (2) whether the record provides sufficient evidentiary support for the restitution orders. We answer both questions in the affirmative.
Applicable Legal Principles and Standard of Review
"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. Lent (1975) 15 Cal.3d 481, 486, superseded by statute on another ground as stated in People v. Moran (2016) 1 Cal.5th 398, 403, fn. 6; People v. Olguin (2008) 45 Cal.4th 375, 384; People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) "Because a defendant has no right to probation, the trial court can impose probation conditions that it could not otherwise impose, so long as the conditions are not invalid under the three Lent criteria." (People v. Rubics (2006) 136 Cal.App.4th 452, 460, overruled on another ground by People v. Martinez (2017) 2 Cal.5th 1093, 1107, fn. 3.)
Restitution as a condition of probation is authorized by section 1203.1. (People v. Anderson (2010) 50 Cal.4th 19, 27.) "While restitution under section 1203.1 may serve to compensate the victim of a crime, it also addresses the broader probationary goal of rehabilitating the defendant. '"Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused."' [Citation.]" (Ibid.)
The standard of proof at a restitution hearing is preponderance of the evidence. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) "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. [Citation.]" (Id. at p. 1543.)
We review a trial court's restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) The abuse of discretion standard "'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations].' [Citation.]" (Ibid.)
The Harvey Waiver Allowed the Trial Court to
Consider Victim Restitution for the Uncharged Burglaries
Section 1192.3, subdivision (b) states that "[i]f restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, . . . the court shall obtain a [Harvey] waiver from the defendant as to the dismissed count." A Harvey waiver "allow[s] the sentencing judge to consider [the defendant's] entire criminal history, including any unfiled or dismissed charges." (People v. Goulart (1990) 224 Cal.App.3d 71, 80; People v. Snow (2012) 205 Cal.App.4th 932, 937 (Snow).)
In Snow, the defendant pled no contest to a count of false imprisonment pursuant to a plea agreement that authorized the dismissal, with a Harvey waiver, of several other domestic assault counts involving the same victim. (Snow, supra, 205 Cal.App.4th at pp. 937-938.) The defendant challenged the restitution order requiring him to pay the victim's medical expenses for a prior, uncharged assault. (Ibid.) The Court of Appeal affirmed, noting the prior "incident was not charged in the information and thus, was not dismissed as part of the plea agreement. And since that incident was not dismissed as part of the negotiated resolution, there is no implied term of the agreement barring that incident's use by the trial court." (Id. at p. 938.) The court emphasized the restitution order also "serve[d] the goal of deterring future assaultive conduct by defendant against the victim or anyone else with whom he establishes an intimate relationship." (Id. at p. 940.)
As in Snow, appellant's Harvey waiver allowed victim restitution on the dismissed counts and any related uncharged offenses. Requiring appellant to pay restitution to other Space Place burglary victims serves the goal of deterring him from committing future burglaries and thefts. "Restitution 'is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his [or her] 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.'" (People v. Moser (1996) 50 Cal.App.4th 130, 135-136; see People v. Hove (1999) 76 Cal.App.4th 1266, 1273.)
The Record Supports the Victim Restitution Orders
Appellant contends the trial court improperly relied on hearsay police reports in finding a causal connection between his criminal conduct and the property losses incurred by Butler and Harwell. No one disputes that their Space Place units were burglarized or that they suffered the claimed losses. The issue is whether the court properly held appellant accountable for those losses.
Appellant's argument disregards the relaxed evidentiary requirements governing trial court sentencing decisions. "'Due process does not require a judge to draw sentencing information through the narrow net of courtroom evidence rules[;] . . . sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes.' [Citation.]" (People v. Baumann (1985) 176 Cal.App.3d 67, 81 (Baumann); People v. Brunette (2011) 194 Cal.App.4th 268, 284 [restitution hearing does not require the formalities of other phases of criminal prosecution].) This discretion includes consideration of probation and police reports. (Baumann, at p. 81.) Appellant has not cited any contrary authority.
In his reply brief, appellant acknowledges that the Attorney General asked the trial court clerk to correct the record by transmitting the PRPD reports to this court. Appellant claims the "request was denied" because "the police reports were never officially admitted into evidence during the restitution hearing." This is incorrect. The clerk administratively rejected the request and advised that a motion to augment the record must be filed in this court. No such motion was filed.
Appellant does not contend the PRPD reports are necessary to permit meaningful appellate review of the restitution orders. (See People v. Rogers (2006) 39 Cal.4th 826, 857-858.) He focuses on his erroneous claim that the police reports cannot be used to link him to the victims' losses for purposes of imposing restitution as a probation condition. (See Baumann, supra, 176 Cal.App.3d at p. 81.) The transcript of the hearing confirms that the trial court, prosecutor and defense counsel reviewed the reports and discussed in detail the portions identifying appellant as the suspected Space Place burglar. Appellant does not claim these discussions misrepresent the actual content of the reports.
We conclude it was reasonable for the trial court to infer from the PRPD reports that appellant committed the Space Place burglaries that caused Butler's and Harwell's property losses. (See Baumann, supra, 176 Cal.App.3d at p. 81.) Appellant has not demonstrated an abuse of the court's broad discretion to order victim restitution as a condition of probation.
DISPOSITION
The orders for victim restitution dated July 15, 2019 are affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
YEGAN, J.
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, and Kristen J. Inberg, Deputy Attorney General, for Plaintiff and Respondent.