Opinion
C090407
07-08-2020
THE PEOPLE, Plaintiff and Respondent, v. GAVIN JAMES WORKMAN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18F2732)
Defendant Gavin James Workman was convicted by plea of one count of receiving stolen property. The trial court placed defendant on three years' probation and ordered him to pay various fines, fees, and assessments. Following a restitution hearing, the trial court also ordered restitution as a condition of probation in the amount of $251,163, to be paid jointly and severally with co-defendants Lyna and Aaron Phipps.
We refer to Lyna Phipps and Aaron Phipps together as the Phipps, and individually by first name only.
Defendant appeals, arguing the trial court erred in making him jointly and severally liable for the restitution award because he was not the immediate cause of all the victim's economic losses. Defendant also argues the trial court erred in imposing the other fines, fees, and assessments without considering his ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finding no error, we affirm.
I. BACKGROUND
Hat Creek Construction Company maintains a construction yard with large industrial machinery, including portable crushing equipment and a permanent asphalt plant. The crushing equipment and asphalt plant each contain five to 10 thousand linear feet of large diameter copper wire. Thieves entered the yard and removed the wire in January 2018, causing extensive damage to the equipment and plant.
Defendant and the Phipps were arrested and charged with receiving stolen property. (Pen. Code, § 496, subd. (a).) Aaron was additionally charged with grand theft of personal property (§ 487, subd. (a)), and both Phipps were charged with various enhancements. Defendant and the Phipps each eventually entered pleas of no contest to the charge of receiving stolen property.
Undesignated statutory references are to the Penal Code.
The trial court placed defendant on probation for three years and imposed the following fines, fees, and assessments: a $40 court operations assessment (§ 1454.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $300 restitution fine (§ 1202.4, subd. (b)), an administrative fee of 10 percent of the restitution fine, a $300 probation revocation restitution fine, which was stayed (§ 1202.44), a $200 base fine (§ 672), a $200 state penalty assessment (§ 1464), a $20 DNA penalty assessment (Gov. Code, § 76104.6), an $80 DNA penalty assessment (§ 76104.7), a $100 state court facilities construction fee (Gov. Code, § 70372), a $140 county penalty assessment (Gov. Code, § 76000), and a $40 state criminal fine surcharge (§1465.7). Defendant made no objection to any of the foregoing fines, fees, or assessments. The trial court also ordered that defendant pay direct victim restitution to Hat Creek, in an amount to be determined.
A restitution hearing was held in the case against the Phipps. During that hearing, Hat Creek's president testified that the copper wire removed from the equipment and plant could only be purchased by special order from large industrial electrical suppliers. Such wire would never be found in an ordinary home, and an ordinary person would have no reason to steal or possess the wire, other than to sell it as scrap. Hat Creek's president submitted a restitution request for $251,163 for the cost to replace the stolen wire and repair the damaged equipment. That amount, which was based on an insurance appraisal, was undisputed.
The trial court subsequently conducted a restitution hearing in the present case. At the outset, the parties agreed that the trial court could consider evidence adduced at the earlier restitution hearing in setting restitution here. The trial court then heard oral argument. Then, as now, defendant argued that he was not involved in the theft of the wire, and therefore, should not be responsible for damage to the equipment and plant. Instead, defendant suggested that his share of restitution be limited to the salvage value of the wire. The prosecutor conceded that defendant was not involved in the theft, but, argued that restitution should be joint and several "because of the nature of the wire; the inherent, obvious, industrial nature of it." The trial court took the matter under submission.
The trial court issued the order that forms the primary basis for this appeal. The order begins by finding that Hat Creek's economic losses were established by clear and convincing evidence. The order then describes the trial court's broad discretion in setting probation conditions, adding that "the restitution requested is reasonably related to the defendants' criminal conduct." The order continues: "The defendants, including defendant Workman, were in possession of an item that is not found in a neighborhood store, or a victim's residence or car. This is specialty wire, which exists only in large industrial plants. The defendants' criminal conduct in receiving this wire within a short time [after] the theft was reported is substantially related to the damage to Hat Creek Construction caused by the taking of the wire and damaging the plants which used the wire for power."
The trial court further found that "the unusual facts of this case, the copper wire itself, the unique method of the theft, the fact that the wire could not have been removed by one single individual, the hour that the theft occurred, and the entry onto the property; and then the fact that the wire was found in all of the defendants' possession shortly after the theft occurred provides the connection necessary to order full restitution to the victim in this case." Accordingly, the trial court ordered restitution in the amount of $251,163 as a condition of defendant's probation, and made defendant jointly and severally liable with the Phipps. This appeal timely followed.
II. DISCUSSION
A. Restitution Award
Defendant argues the trial court erred in setting the restitution award to Hat Creek. Specifically, he argues the trial court erred in making his liability joint and several, as there was nothing to suggest he was responsible for damage done to Hat Creek's equipment and plant at the time of the theft. In defendant's view, an appropriate award would limit his share of restitution to the replacement value of the stolen wire, which he estimates to be $50,000. We are not persuaded.
California crime victims have a constitutional and statutory right to receive full restitution for economic losses suffered as a result of a defendant's criminal conduct. (Cal. Const., art. I, § 28, subd. (b)(13); § 1202.4, subds. (a)(1), (a)(3)(B) & (f).) When a defendant is convicted and sentenced to state prison, "section 1202.4 limits restitution to losses caused by the criminal conduct for which the defendant was convicted." (People v. Lai (2006) 138 Cal.App.4th 1227, 1249; see also People v. Woods (2008) 161 Cal.App.4th 1045, 149 ["Courts have interpreted section 1202.4 as limiting restitution awards to those losses arising out of the criminal activity that formed the basis of the conviction"].) But a different standard applies where, as here, a defendant is ordered to pay restitution as a condition of probation. (People v. Martinez (2017) 2 Cal.5th 1093, 1101 ["the restitution power conferred by section 1202.4 stands in contrast to a court's power to order restitution as a condition of probation"].)
Section 1203.1 "gives trial courts broad discretion to impose probation conditions to foster rehabilitation and to protect public safety." (People v. Anderson (2010) 50 Cal.4th 19, 26.) "California courts have long interpreted the trial court's discretion [under section 1203.1] to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121; see also People v. Anderson, supra, at p. 27 ["There is no requirement the restitution order [imposed pursuant to section 1203.1] be limited to the exact amount of the loss in which the defendant is actually found culpable . . ."].) "A trial court's power to order restitution in probation cases is thus broader than its power to order direct victim restitution under section 1202.4 in cases in which the defendant receives a nonprobationary sentence." (People v. Martinez, supra, 2 Cal.5th at p. 1101.)
"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.' " (People v. Goulart (1990) 224 Cal.App.3d 71, 78; see also People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) Our task on appeal is to "determine whether the restitution order, as a condition of probation, is arbitrary or capricious or otherwise exceeds the bounds of reason under the circumstances." (People v. Anderson, supra, 50 Cal.4th at p. 32.)
Applying these standards, we have little difficulty concluding the trial court acted within its discretion in making defendant jointly and severally liable for the entire restitution award. Although defendant may not have been personally responsible for removing copper wire from the construction yard and causing damage to Hat Creek's plant and equipment, the trial court found the unique circumstances surrounding the theft supplied the necessary connection to defendant. We cannot say the trial court abused its discretion in so finding. The wire was obviously designed for industrial use, and the trial court could reasonably conclude that anyone possessing such wire in large quantities would know, or reasonably should know, that extracting wire from heavy equipment poses a high risk of costly damage. On the record before us, the trial court could reasonably conclude that defendant knowingly participated in a group effort to steal, strip, and sell wire for its recycle value, such that defendant's criminal conduct in receiving and transporting the wire was substantially related to the crimes committed by his confederates; namely, the theft of the wire from the construction yard and resulting damage to Hat Creek's plant and equipment. The restitution condition was thus reasonably related to defendant's crime.
Defendant contends there was an insufficient nexus because he was not personally responsible for cutting the wire or causing damage to the plant and equipment. However, restitution as a condition of probation does not require a finding that the defendant was the cause of the loss. (See In re I.M. (2005) 125 Cal.App.4th 1195, 1209-1210.) "That a defendant was not personally or immediately responsible for the victim's loss does not render an order of restitution improper . . . . Again, the question simply is whether the order is reasonably related to the crime of which the defendant was committed or to future criminality." (Id. at p. 1209; see also People v. Carbajal, supra, 10 Cal.4th at pp. 1123-1124.)
Defendant directs our attention to People v. Leon (2004) 124 Cal.App.4th 620 (Leon), in which the court of appeal reversed a restitution order making the defendant jointly and severally liable for four forged checks, when he was convicted of forging only one check, and there was no evidence he aided or abetted his co-defendant in forging the others. (Id. at p. 622.) He also directs our attention to People v. Holmberg (2011) 195 Cal.App.4th 1310 (Holmberg), in which the court of appeal approved of a restitution order that was narrowly tailored to include "only the losses attributable to defendant's conduct." (Id. at p. 1324.) Both cases are readily distinguishable. Holmberg and Leon involved victim restitution pursuant to section 1202.4, subdivision (f), rather than restitution as a condition of probation pursuant to section 1203.1. (Holmberg, supra, at pp. 1320-1321; Leon, supra, at p. 622.) As we have discussed, section 1202.4 requires a closer causal connection between the restitution order and the crime of conviction. (See People v. Martinez, supra, 2 Cal.5th at pp. 1100-1102.) Defendant's reliance on Holmberg and Leon is inapposite and therefore, unavailing. B. Dueñas
As noted, the trial court imposed various fines and fees in the amounts set forth ante. Defendant argues the trial court erred in imposing the aforementioned fines and fees without determining his ability to pay under Dueñas, supra, 30 Cal.App.5th 1157. We are not convinced that Dueñas was correctly decided.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the Dueñas court's conclusion that due process requires the trial court to conduct an ability to pay hearing before imposing court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (People v. Kopp, supra, at pp. 95-96.) In the meantime, we join those courts that have concluded the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, rev. granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. I concur: /S/_________
DUARTE, J. MAURO, Acting P. J., Concurring and Dissenting.
I fully concur in the majority opinion except for part II, subpart B, pertaining to fines, fees and assessments, as to which I dissent.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court held it is improper to impose certain fines or assessments without determining defendant's ability to pay. (Id. at pp. 1168, 1172.) Although some courts have subsequently criticized Dueñas's legal analysis (see, e.g., People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946), Dueñas remains citable precedent. Until the California Supreme Court has had an opportunity to resolve the current split in authority, I would remand the matter to give the trial court an opportunity to consider defendant's ability to pay the imposed fines, fees and assessments.
/S/_________
MAURO, Acting P. J.