Opinion
A148816
08-18-2017
THE PEOPLE, Plaintiff and Respondent, v. PETER J. THOMA, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC083355A)
Peter J. Thoma pleaded no contest to one count of receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a)). The trial court suspended Thoma's sentence and placed him on three years of probation. The court ordered Thoma to pay $5,300 in victim restitution. (§ 1203.1.)
All undesignated statutory references are to the Penal Code.
Thoma appeals. He contends we should strike the restitution order because it is not reasonably related to his crime or to deterring future criminality. We agree in part because the prosecution did not establish Thoma was responsible for the damage to the stolen vehicle. We modify the restitution order by striking part of the award and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 22, 2015, police officers located a Ford F35 cargo truck in Daly City. The truck was reported stolen from Oakland almost a month earlier, on April 27, 2015. As officers approached the truck, they observed Thoma sliding out of the passenger door as if "attempting to avoid detection." When ordered to the ground, he stated, "I was just sleeping there, it's not mine."
At the plea hearing, Thoma stipulated to the factual basis for his plea based on "the police report and independent investigation." The record does not contain the police report. On appeal, Thoma's statement of the facts is based on the account in the prosecution's restitution memorandum, which, according to Thoma, "summarized the police report." At the first restitution hearing, the parties stipulated to a similar account of the facts. We rely on the same brief factual accounts.
Officers noted the truck's hood was warm to the touch. The ignition was stripped. Using a master or modified key found in the ignition, an officer was able to start the truck. The key did not belong to the victim. Officers located a backpack in the truck's seating, which belonged to Thoma. The truck was damaged: the ignition was "punched," the "passenger door was dented and appeared to be kicked in," and there was damage to the axle and undercarriage.
The prosecution charged Thoma with two felony counts: grand theft auto with a prior (§ 666.5) and receiving a stolen motor vehicle (§ 496d, subd. (a)). Thoma was also charged with three misdemeanors: possession of burglar's tools (§ 466), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and possession of drug paraphernalia (Health & Saf. Code, § 11364.1, subd. (a)(1)).
Thoma pleaded no contest to the count of receiving a stolen motor vehicle. The court dismissed the other charges. The court suspended Thoma's sentence and placed him on three years of supervised probation, stating Thoma "will make restitution to the victim in an amount to be determined." The court held three contested hearings on victim restitution, at the conclusion of which it ordered Thoma to pay $5,300 in victim restitution, plus a 15 percent installment payment fee. The restitution award was based on the damage to the truck, and the victim's cost of renting a replacement truck.
DISCUSSION
I.
The Court Abused Its Discretion When It Ordered Thoma to Pay for the Truck's Damage,
but Not When It Ordered Thoma to Pay for a Rental Truck
Thoma contends he should not have to pay restitution for the victim's losses because he did not acquire possession of the truck prior to when the losses occurred, and restitution cannot serve a rehabilitative purpose because he was not responsible for the victim's losses. We agree in part with Thoma. The prosecution did not establish Thoma was responsible for the truck's damage, so the court should not have ordered Thoma to pay for its repair. Nevertheless, the court did not abuse its discretion by requiring Thoma to reimburse the victim for the cost of renting a replacement truck. We begin with a summary of the evidence presented at the three restitution hearings.
A. The Restitution Hearings
Based on documentation submitted by the victim, the probation department recommended Thoma pay restitution of $16,358, plus a 15 percent administrative fee. The prosecution based the amount on the estimated value of property missing from the truck, repairs to the truck, and lost wages.
At the first restitution hearing, the victim and her father-in-law testified. When her truck was stolen, the victim was preparing to move from Oakland to Tulare, California, so the truck contained many of her belongings. The items included three rugs, two televisions, the victim's shoes, her children's shoes, a sofa, and a book cabinet. When the truck was recovered, these items were missing. The victim estimated their value was $11,858. The victim purchased the used 1996 U-Haul truck at an auction about one year before it was stolen. She paid about $4,000 for the truck, and its Kelly Blue Book value was $3,000.
The victim testified the truck was in perfect condition and she obtained a "tune-up" in preparation for her move. When returned, the vehicle was not the same. When driving the truck, it felt "forced," and the victim had trouble steering it. The ignition switch was broken, and the passenger door did not close properly. There was damage to the undercarriage and the axle. The victim repaired the ignition switch. Her father-in-law obtained repair estimates for the unrepaired damage and the cheapest one was $2,500.
The court expressed doubt about its ability to order restitution for the items missing from the truck because Thoma was "not charged with stealing the property that was missing. He [was] charged with being in possession of a stolen car." However, the court opined the victim could recover the cost of repairing the damage. The court set a second hearing based on the need for a written repair estimate.
At the second restitution hearing, the victim submitted a repair estimate of $4,690. It consisted of $495 for repairs to the right side door, $189 for repairs to the left side door lock, $299 to repair the gearshift, $209 to repair the steering column, $1,900 to repaint the cargo box, and $1,598 to repair damage to the front suspension. The estimate was more than the one discussed at the first hearing because a licensed repair shop provided the new estimate. The court ordered the parties to brief whether Thoma could be held responsible for this damage and continued the matter again.
At the third hearing, Thoma argued there was nothing to connect him to the theft of the truck in Oakland, which occurred 23 days before the police found him in the truck in Daly City. The prosecution responded Thoma knew the truck was stolen and benefited from its use. Although the victim initially sought $2,000 for lost wages, she testified she used the truck about once or twice a week, and the truck was for personal, not business, use. When her truck was stolen, she rented another one to complete her move. The rental truck cost $260. The court marked as exhibits the updated repair estimate, the repair bill for the ignition, and the victim's claim regarding property missing from the truck.
In ruling on victim restitution, the court found there was a "sufficient nexus," and "public policy is in favor of ordering restitution." The court determined "the total restitution is $5,300 which is as follows: $4,690 for the repair estimate . . . $350 for the ignition repair, and $260 for loss of use." Thoma appeals the ruling.
B. Restitution as a Condition of Probation
Restitution means " 'reimbursement to the victims of crime for actual loss flowing from the charged offense or from related misconduct.' " (People v. Vournazos (1988) 198 Cal.App.3d 948, 954 (Vournazos).) Under California law, "[c]onvicted criminals may be required to pay one or more of three types of restitution." (People v. Giordano (2007) 42 Cal.4th 644, 651.) They may be required to pay a fine into the state Restitution Fund, to pay restitution directly to the victim, or to pay restitution as a condition of probation. The statutory requirements vary depending on the type of restitution. (Id. at pp. 651-652.)
This case concerns restitution as a condition of probation. When granting probation, "[t]he court shall provide for restitution in proper cases." (§ 1203.1, subd. (a)(3).) The court may impose probation conditions it determines "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." (§ 1203.1, subd. (j).)
Courts have "broad discretion" regarding conditions of probation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) "[A] condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) When ordering restitution as a condition of probation, "the court is not limited to the transactions or amounts of which defendant is actually convicted." (Ibid.)
Courts have discretion to order restitution "even when the loss was not necessarily caused by the criminal conduct underlying the conviction," including in cases 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." (Carbajal, supra, 10 Cal.4th at p. 1121.) "This greater latitude to impose restitution arises from the purpose of probation to foster rehabilitation [citation] as well as from the defendant's consensual decision to forgo imprisonment in favor of probation and its potentially more onerous conditions." (People v. Walker (2014) 231 Cal.App.4th 1270, 1274.)
We review the imposition of a condition of probation for an abuse of discretion. (Carbajal, supra, 10 Cal.4th at p. 1121.) "The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute." (Ibid.) The prosecution must prove by a preponderance of the evidence that restitution should be ordered as a condition of probation and the amount of restitution. (People v. Baumann (1985) 176 Cal.App.3d 67, 80 (Baumann).)
C. The Court Abused Its Discretion by Awarding Restitution for the Truck's Damage
Here, at the restitution hearings, the court considered three categories of losses: the property missing from the truck, the damage to the truck, and the loss of use of the truck. The court acknowledged it could not award restitution for the property missing from the truck. Instead, the court awarded restitution for the cost of repairing the truck and renting a replacement. Applying Carbajal's test for restitution as a condition of probation, we conclude the victim is not entitled to restitution from Thoma for the damage to her truck, but she is entitled to restitution for the cost of renting a replacement.
In Carbajal, the defendant pleaded no contest to leaving the scene of an accident, and the California Supreme Court determined the trial court could order the defendant to pay restitution to the person whose car was damaged. (Carbajal, supra, 10 Cal.4th at pp. 1118-1119.) Even though leaving the scene of the accident did not cause the damage, restitution related to the crime and to deterring future criminality. (Id. at pp. 1124-1125.) First, it related to the crime because leaving the scene of an accident imposes costs on non-fleeing drivers, including those associated with locating the culprit, paying for the damage, and increased insurance premiums. (Id. at p. 1124.) The Supreme Court concluded "[t]he lack of a precise fit between the costs of the crime and the amount of restitution ordered does not render the restitution order invalid, if it serves a purpose described in Penal Code section 1203.1." (Ibid.)
Second, the restitution acted "both as a deterrent to future attempts to evade . . . legal and financial duties as a motorist and as a rehabilitative measure tailored to correct the behavior leading to his conviction." (Carbajal, supra, 10 Cal.4th at p. 1124.) The defendant conceded he caused the damage to the victim's car, so there was "no question as to defendant's responsibility for the loss." (Ibid.) Under these circumstances, the restitution "would serve the rehabilitative purposes specified in Penal Code section 1203.1." (Id. at p. 1125.)
Applying Carbajal, we cannot conclude requiring Thoma to pay restitution for the truck's damage relates to his crime or to the statute's purposes. Thoma pleaded no contest to the charge of receiving a stolen motor vehicle. (§ 496d, subd. (a).) The elements of the crime are: (1) the vehicle was stolen; (2) the defendant knew the vehicle was stolen; and (3) the defendant had possession of the stolen vehicle. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425, disapproved on other grounds in People v. Covarrubias (2016) 1 Cal.5th 838, 874, fn. 14; People v. Land (1994) 30 Cal.App.4th 220, 223.) As the Attorney General points out, Thoma's "plea was an admission that he knew that the U-Haul vehicle he received was stolen." Also, there was some evidence Thoma may have recently driven the truck because the truck's hood was warm to the touch, and a police officer was able to start the truck using the modified key in the ignition.
Nevertheless, requiring Thoma to pay for the damage does not serve the statute's rehabilitative purposes because, unlike in Lent or Carbajal, there was no evidence Thoma was responsible for the damage. In Carbajal, where the defendant was convicted of fleeing the scene of an accident, the defendant also conceded he caused the damage to the victim's car. (Carbajal, supra, 10 Cal.4th at p. 1124.) Similarly, in Lent, even though the defendant was acquitted of one of two counts of grand theft against the victim, after an "unusually prolonged probation hearing," the court was convinced the defendant was responsible for the entire amount of the victim's loss. (Lent, supra, 15 Cal.3d at pp. 486-487.) But here, all the prosecution established was Thoma's possession of the truck almost a month after it was stolen and that Thoma knew it was stolen: he had possession of the shaved ignition key. We may suspect he stole it or was responsible for the damage, but more than suspicion is required to order restitution for the damage—evidence that Thoma, as opposed to someone else, was involved in the conduct that caused the damage. The prosecution was required to prove by a preponderance of the evidence that Thoma engaged in the conduct for which he was ordered to make restitution. (Baumann, supra, 176 Cal.App.3d at pp. 79-80.) Where the prosecution failed to do so, the court abused its discretion by ordering Thoma to pay for the truck's damage.
D. The Court Did Not Abuse Its Discretion by Awarding Restitution for Loss of Use of the Truck
On the other hand, the restitution award for loss of use of the truck relates to Thoma's crime and to deterring future criminality. (Lent, supra, 15 Cal.3d at p. 486.) It relates to the crime because receiving the stolen truck deprived the victim of its use. (See People v. Holmberg (2011) 195 Cal.App.4th 1310, 1322 [where defendant was convicted of concealing stolen property, but denied involvement in burglaries, his conduct "was a concurrent cause in depriving the victims of the use of their property"].) The victim had to rent a replacement truck to complete her move, which cost $260.
Requiring Thoma to reimburse the victim for this cost appropriately acts to deter future criminality and is a "rehabilitative measure tailored to correct the behavior leading to his conviction." (Carbajal, supra, 10 Cal.4th at p. 1124.) While the evidence does not indicate when Thoma received the stolen truck, Thoma was responsible for depriving the owner of its use for some period of time. Under these circumstances, "the restitution order serves a rehabilitative purpose by bringing home to the defendant the consequences of" his crime of receiving a stolen vehicle. (In re I.M. (2005) 125 Cal.App.4th 1195, 1210.) Even if Thoma did not receive the stolen truck until after the victim's move, awarding restitution for the cost of renting the replacement truck still serves this rehabilitative purpose.
In arguing we should uphold the court's restitution award in its entirety, the Attorney General contends the restitution "acts as a deterrent to future criminality by discouraging [Thoma] from receiving, possessing, or . . . sleeping or residing . . . in a damaged stolen vehicle on some future occasion." But, as Thoma points out, any order of restitution can be deemed a deterrent to future criminality.
We agree with Thoma that to appropriately tailor restitution awards, "a finding of rehabilitative effect must rest on sufficient evidence of the defendant's responsibility for the losses at issue." The Attorney General never responds to this point. Our review of Lent and Carbajal indicates Thoma is correct. (See Carbajal, supra, 10 Cal.4th at p. 1124 ["As in Lent, . . . there is no question as to defendant's responsibility for the loss"].) Here, the prosecution did not establish Thoma was responsible for the damage to the truck. Therefore, we must strike the part of the restitution order requiring Thoma to pay for the damage.
In arguing the restitution order serves a rehabilitative function, the Attorney General cites In re I.M., supra, 125 Cal.App.4th 1195. There the juvenile court found true allegations the defendant had been an accessory after the fact to murder, and, as a condition of probation, the juvenile court ordered the defendant to pay the expenses of the victim's funeral. (Id. at p. 1199.) The court of appeal affirmed the juvenile court's restitution order, even though "some other person was the immediate cause of economic loss to the victim . . . , and the defendant's criminal liability was based on conduct taking place only after the loss was sustained." (Id. at p. 1208.)
However, In re I.M. is factually distinguishable. In that case, there was evidence the defendant was present when the victim was shot, he hid the shooter's gun for a time, and the court found true a gang enhancement allegation. (In re I.M., supra, 125 Cal.App.4th at pp. 1199, 1201.) The court of appeal stated "[w]here, as here, the defendant has been found to have been promoting and assisting gang conduct, the restitution order serves a rehabilitative purpose by bringing home to the defendant the consequences of his gang membership. Defendant chose to be a member of the . . . gang . . . . The effect of the order is to make defendant aware of the consequences of his choice by compelling him to share responsibility for the gang-related activities in which he in some way participated." (Id. at p. 1210.)
Here, unlike In re I.M., the prosecution did not show Thoma was present when the loss occurred, or engaged in conduct—such as gang-related activities—that contributed to the loss. Even though the court's discretion is broad when ordering restitution as a condition of probation, the restitution must serve a statutory purpose. (Carbajal, supra, 10 Cal.4th at p. 1121.) Where Thoma pleaded no contest to receiving the stolen truck, but where there was insufficient evidence Thoma was responsible for the truck's damage, requiring Thoma to pay for the damage does not in our view serve the ends of justice, make amends to society for his breach of the law, make amends to the victim "for any injury . . . resulting from that breach," or aid in Thoma's rehabilitation. (§ 1203.1, subd. (j).)
In arguing otherwise, the Attorney General relies on Vournazos, supra, 198 Cal.App.3d 948, but this reliance is misplaced. In that case, the defendant pleaded no contest to unlawful driving and taking of a vehicle stolen two days earlier. (Id. at p. 952.) The court of appeal determined the victim's loss of items missing from the car was "directly related" to the defendant's crime. (Id. at p. 956.) It stated "the items of personal property, for the loss of which restitution was ordered, were in the briefcase which in turn was in the car. Those items were lost as a result of defendant's unlawful taking and/or driving the Mercedes." (Id. at p. 955.) But here, unlike in Vournazos, the court had no basis to conclude the truck's damage was a result of Thoma's conduct.
Next, the Attorney General argues "there was an adequate factual basis connecting" Thoma's possession of the truck to the damage because Thoma "was found with a shaved key in the damaged ignition and the hood was warm to the touch." The Attorney General argues the evidence establishes Thoma "used" the truck "in its damaged state, knowing it was stolen, and failed to return it to its owner." We agree with this statement, but not with the conclusion Thoma's conduct was causally related to the damage. Instead, it indicates Thoma should reimburse the owner for her loss of use of the truck.
In Carbajal, the Supreme Court disapproved of People v. Richards (1976) 17 Cal.3d 614, 622, to the extent Richards permitted restitution only when "the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted . . . ." (Carbajal, supra, 10 Cal.4th at p. 1126.) Here, we do not find the conduct that resulted in the damage to the truck had to be committed with the same state of mind as the conduct underlying Thoma's conviction. But there had to be some indication Thoma engaged in conduct that resulted in the damage. (Id. at p. 1124.) Where the prosecution did not establish Thoma's responsibility for the damage, the court abused its discretion by ordering him to pay for the damage.
In People v. Scroggins (1987) 191 Cal.App.3d 502, the court held a defendant convicted of receiving stolen property should not have to pay restitution to other burglary victims where the defendant was not charged with or found responsible for the burglaries. (Id. at p. 506.) Similarly, in In re Maxwell C. (1984) 159 Cal.App.3d 263, the court held a minor should not have to pay restitution for all damages suffered by an auto burglary victim where the minor admitted receiving a stolen car stereo, but denied involvement in the burglary. (Id. at pp. 265-266.) Both cases relied in part on the disapproved analysis from Richards. (Scroggins, at pp. 505-506; Maxwell, at pp. 265-266.) We have not done so here. --------
II.
Section 1192.3 Does Not Apply
Thoma contends the restitution order violates section 1192.3, subdivision (b), because he never agreed that facts underlying the dismissed charges could be used to impose adverse sentencing consequences. We find section 1192.3, subdivision (b), does not apply.
In People v. Harvey (1979) 25 Cal.3d 754 (Harvey), the California Supreme Court held that facts underlying charges dismissed as part of a negotiated plea may not, absent contrary agreement by the defendant (now called a Harvey waiver), be used to impose adverse sentencing consequences. (Id. at pp. 758-759.) Courts expanded the principle to cover victim restitution. (Baumann, supra, 176 Cal.App.3d at pp. 74-75.) The Legislature codified the principle in section 1192.3, subdivision (b), which provides: "If restitution is imposed which is attributable to a count dismissed pursuant to a plea bargain, . . . the court shall obtain a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, from the defendant as to the dismissed count."
Here, count 1 charged grand theft auto with a prior (§ 666.5), but the court dismissed the count when Thoma pleaded no contest to count 2, the offense of receiving a stolen motor vehicle. Thoma argues he "did not execute a Harvey waiver" at the plea hearing, and "[t]herefore restitution for facts relating to count 1 violates section 1192.3." The Attorney General acknowledges the restitution order was not premised on facts underlying the dismissed count of theft of the vehicle. In addition, the Attorney General does not argue the court obtained a Harvey waiver. Accordingly, to the extent we understand this argument, the Attorney General contends section 1192.3, subdivision (b), does not apply.
We agree this code section does not apply. The evidence did not show who stole the truck, and the court's restitution order could not be based on facts underlying the dismissed grand theft count because the court did not obtain a Harvey waiver regarding that dismissed count. Instead, the court ordered restitution based on Thoma's possession of the stolen truck. But, as explained above, Thoma's possession was insufficient to hold him responsible for the truck's damage.
DISPOSITION
The restitution award is modified to strike $5,040 awarded to the victim for the damage to her truck, resulting in an award of $260 to the victim for the loss of use of her truck. As so modified, the judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.