Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV800116. Michael R. Libutti and Douglas M. Elwell, Judges.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Melissa Mandel and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Dijon Markese Weems pled guilty to receiving stolen property. (Pen. Code, § 496, subd. (a).) Defendant challenges the restitution imposed as a condition of his probation. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
On December 10, 2007, the victim’s residence was burglarized. On December 27, 2007, the victim located some of her missing jewelry at a pawnshop in Pomona. The jewelry had been pawned on December 15, 2007. A pawnshop employee recognized defendant as the person who pawned the items.
When asked by a police officer if he had recently pawned any property, defendant said he had pawned some jewelry in Ontario. When asked about pawning any other property in any other cities, he said no. When asked if he had pawned any jewelry just before Christmas, defendant responded that he had. He said he got the jewelry on the street from a bootlegger, that he thought the jewelry was fake, and that when the pawnshop offered him more money than he had paid he sold the jewelry. When the police officer told defendant that “he did not believe his story, the defendant stated he had no knowledge of a burglary or any of the property taken from the burglary.”
Defendant pled guilty on January 24, 2008. His plea included a Harvey waiver permitting uncharged activity or dismissed counts to be considered for restitution purposes.
People v. Harvey (1979) 25 Cal.3d 754.
On July 1, 2008, a restitution hearing was held. The victim was present, but the defendant was not. Counsel for both parties stipulated that the victim’s losses from the burglary were $28,198, but that defendant could “protest how much he personally should have to pay.”
On November 4, 2008, a restitution hearing was held with the defendant present. However, the trial court continued the hearing so it could conduct its own research. On December 3, 2008, another restitution hearing was held, and the defendant was again present. Defendant did not challenge the stipulation, by his counsel, as to amount of the victim’s losses during the November 4 or the December 3 hearings.
At the December 3, 2008 hearing, the trial court considered the appropriateness of imposing restitution for the victim’s total losses when defendant had only been linked to receiving some of the property stolen from the victim. The court stated “that inasmuch as [defendant] is on probation... there is a rehabilitation factor to a restitution order in addition to a compensation factor.” Further, “obviously you cannot be convicted of being in receipt of stolen property without the element of knowledge. In other words, the person has to know that what they are in receipt of was obtained by theft or extor[t]ion or whatever, and people who steal things would not do so for the most part if they didn’t know that they could fence those materials and move them on or sell them to other people, and I think that alone establishes a sufficient nexus of criminality between the order of restitution and the underlying loss in this particular case.” The trial court also noted that “[t]here is a disconnect to a certain extent here between the actual theft and being in receipt” and noted that appellate review may be appropriate and perhaps “fruitful” for the defendant to pursue. The trial court ordered restitution in the full amount of the victim’s stipulated losses, $28,198.
STANDARD OF REVIEW
We review a trial court’s restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663 (Giordano).) “When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.” (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
DISCUSSION
Defendant contends there was insufficient evidence to support imposing the full amount of the victim’s loss because there was no evidence establishing that defendant was “directly involved in the burglary” or evidence supporting the victim’s losses. We disagree.
Amount of Loss
The stipulation established the amount of the victim’s losses. While defendant was not present at the hearing where the stipulation was entered into, he was present at the two subsequent hearings and did not object to the stipulated amount. To the extent defendant wishes to challenge the amount stipulated to by his counsel in his absence, he has waived the issue by failing to raise it at either the November 4, 2008, or December 3, 2008, hearings. This is because “when a party enters into a voluntary stipulation, he generally is precluded from taking an appeal claiming defects in the stipulation” (People v. Gurule (2002) 28 Cal.4th 557, 623), and it may be assumed that the stipulation reflects “ ‘defendant’s consent in the absence of an express conflict’ ” (People v. Hinton (2006) 37 Cal.4th 839, 874).
Restitution for victim’s entire burglary losses
Subdivisions (a)(3) and (j) of section 1203.1 grant a trial court broad discretion in imposing terms of probation, and a trial court’s discretion to order restitution is broader when restitution is imposed as a condition of probation. (Giordano, supra, 42 Cal.4th at p. 663, fn. 7.) “That a defendant was not personally or immediately responsible for the victim’s loss does not render an order of restitution improper.” (In re I.M. (2005) 125 Cal.App.4th 1195, 1210.) Section 496 “is directed at those who knowingly deal with thieves and with their stolen goods after the theft has been committed. In other words... at the traditional ‘fence’ and at those who lurk in the background of criminal ways in order to provide the thieves with a market or depository for their loot.” (People v. Tatum (1962) 209 Cal.App.2d. 179, 183 (Tatum).) In the eyes of the law, a fence may be more dangerous to society than the thief. (Id. at p. 184.) A condition of probation will not be held invalid unless (1) it has no relationship to the crime of which the defendant was convicted; (2) it relates to conduct not itself criminal; and (3) it requires or forbids conduct unrelated to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) Because probation is an act of clemency, not a right of a defendant, the trial court may impose probation conditions it might not otherwise impose, so long as the conditions are not invalid under the Lent criteria. (People v. Rubics (2006) 136 Cal.App.4th 452, 459-460.)
Tatum held that, absent an act completely divorced from a thief’s initial course of conduct in stealing property, a thief could not be convicted of both theft and violating section 496. (Tatum, supra, 209 Cal.App.2d at p. 183.) A 1992 amendment to section 496 superseded the holding in Tatum by permitting a thief’s conviction under section 496 when the statute of limitations has run on the theft. (In re Kali D. (1995) 37 Cal.App.4th 381, 385.) The explanation in Tatum of the purpose of section 496 remains valid.
Defendant received stolen goods, and then sold them. Defendant was a fence. Someone who receives and resells stolen property rewards, and thus encourages, the commission of theft crimes in the future. Intermediaries who handle stolen property harm victims by making it far more difficult to trace and recover stolen property. Functioning as a conduit for stolen property is arguably more dangerous to society than the theft. (Tatum, supra, 209 Cal.App.2d at p. 184.)
We hold that Lent is not violated when fences who are granted probation are required to pay restitution for a victim’s entire loss, even though the fence may have only handled some of a victim’s stolen property. Such a restitution order is not unrelated to a conviction for receiving stolen property because the existence of fences facilitates theft crimes, and hinders the ability of victims to recover their property. Such a restitution order is also related to future criminality because it deters future criminality of this type by exposing defendants to the full cost of facilitating burglaries and other theft offenses.
Accordingly, the trial court did not abuse its discretion in holding defendant liable for the entire loss suffered by victim.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J. McKINSTER J.