Opinion
H025339.
11-21-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHN ALAN ZELLER, Defendant and Appellant.
Defendant John Alan Zeller appeals after pleading no contest to one felony count of fraudulent use of a contractors license number, in violation of Business and Professions Code section 7027.3. Defendant was placed on probation for five years with a 54-day county jail sentence, and was ordered to pay $26,226 in victim restitution.
Unspecified section references are to the Business and Professions Code.
On appeal, defendant contends (1) the trial court violated the plea agreement by imposing a five-year probation condition contrary to his plea agreement, which stated that he would receive three years probation; and (2) the trial court abused its discretion by ordering defendant to pay $26,226 in victim restitution.
We will modify the probation order to reflect the terms of the plea agreement. We will affirm the judgment as modified.
I. BACKGROUND
We set forth the facts underlying defendants offense in the light most favorable to the judgment. (See People v. Valencia (2002) 28 Cal.4th 1, 4.)
On or about April 4, 2000, Dennis E. Kelley entered into a contract with defendant for defendant to remodel Kelleys kitchen. Prior to entering into the contract, defendant supplied Kelley with a business card containing his expired contractors license. Defendant told Kelley that he was a "licensed and bonded contractor." Unbeknownst to Kelley, defendants contractors license had expired on November 30, 1997. Nevertheless, defendant "continued to do business as usual" without renewing his expired license.
Defendant began remodeling in April 2000, and substantially completed the work in July 2000. Upon inspection of the work, Kelley found numerous defects in the cabinet facings, moldings, doors and drawer fronts, and the counter tiles. Despite defendants attempts to make some minor repairs, Kelley fired defendant and demanded that he be reimbursed for the $30,000 he had spent on the remodeling. Thereafter, Kelley issued a complaint with the Contractors State License Board.
Defendant was charged, by felony complaint, with one count of fraudulent use of an expired contractors license number (§ 7027.3), and two misdemeanors: one count of contracting without a license (§ 7028, subd. (a)), and one count of excessive down payment in contract (§ 7159, subd. (d)).
On August 9, 2002, defendant entered a no contest plea to the felony charge pursuant to an agreement with the prosecution. Defense counsel described the terms of the plea bargain as follows: "It will be a plea of no contest to Count One. Counts Two and Three will be dismissed. He will receive three years formal probation. Probation conditions, 54 days in the county jail, 54 days credit for time served and he will have to pay full restitution." The prosecutor confirmed this agreement and the fact that defendant was making "a Harvey stipulation as to the dismissed counts."
Absent a waiver by defendant, a sentencing court is not permitted to rely upon information relating to counts dismissed in accordance with a plea bargain. (People v. Harvey (1979) 25 Cal.3d 641.)
On October 25, 2002, a restitution hearing was held to determine the amount to be paid to the Kelleys. Although the Kelleys paid defendant approximately $30,000 to remodel the kitchen, only the cost for the cabinets and counter tiles were in dispute during the restitution hearing. Defendant estimated that it would cost $16,725 to repair the existing defects. The Contractors State License Board consulted an expert who inspected the kitchen and estimated the cost of repair to be $10,427.
Although the expert answered the courts questions regarding the kitchen cabinets and tiles, he was never sworn in as a witness.
The expert, who based his repair estimates on the workmanship done in the kitchen, did not consider the cost of replacing defendants installation of "low-end custom cabinets." He determined that although the Kelleys requested "custom" cabinets, they had actually described "high-end premium cabinets." To provide the Kelleys with exactly the type of cabinets they wanted, the expert concluded that repair would be insufficient; the cabinets would have to be taken out and replaced.
The Kelleys obtained several contractor bids for repair and replacement of the cabinets. The low-end estimate for refinishing, not replacing, the cabinets was about $8,500. The highest estimate for completely replacing the cabinets was $32,000. The court used the middle estimate in awarding $21,226 for the replacement of the cabinets. The parties did not dispute the need to replace the counter tiles because they were found to be functionally defective. The cost for tile replacement was $5,000.
At the end of the October 25, 2002 hearing, the trial court imposed sentence. It placed defendant on five years probation, with 54 days of credit for the 54-day county jail sentence. The trial court continued the restitution portion of the hearing until November 25, 2002. On that date, the trial court ordered defendant to pay $26,226 in victim restitution, specifying: "And that is the replacement of cabinets [using the middle estimate], and adding . . . $5,000 . . . for the tile work."
II. DISCUSSION
A. Probation Term
Defendant contends the trial court violated the terms of the plea agreement by imposing a five-year probation condition rather than a three-year term.
In People v. Walker (1991) 54 Cal.3d 1013, the California Supreme Court recognized the requirement that "parties must adhere to the terms of a plea bargain." (Id. at pp. 1019-1020.) The court held that "[a] violation of a plea bargain is not subject to harmless error analysis." (Id. at p. 1026.) This occurs where the punishment "significantly exceed[s] that which the parties agreed upon." (Id. at p. 1024.)
Here, the record supports defendants contention that the trial court erred in ordering a five-year probation term instead of the three-year term specified in the plea agreement. At the change of plea hearing on August 9, 2002, defense counsel informed the court of the plea bargain terms — "three years formal probation . . . 54 days in the county jail, 54 days credit for time served, and . . . full restitution." However, during the sentencing hearing on October 25, 2002, the trial court "placed [defendant] on formal probation for a period of five years" without explanation. Although there was no objection by defense counsel, this five-year term is a significant deviation from the plea agreement.
The People argue: "[a]lthough the first mention of the bargain referred to three years [citation omitted], subsequent references made clear that the three-year reference was only to a potential state prison sentence if appellant were later found in violation of probation." They refer to the trial courts following statements: "[A] condition of this plea is that you plead to the felony, not be sent to state prison, but that the maximum time that you could be sentenced to would be one year in county jail, absolute maximum. [¶] . . . [¶] [Y]ou could be placed on probation for up to five years. If you were to violate a condition of your probation, following a hearing, you could be sent to state prison for three years." The trial courts advisory statement, that defendant could receive up to five years probation, conflicted with the terms of the plea bargain as set out by defense counsel and confirmed by the prosecutor. We will modify the probation order to reflect a three-year term in accordance with the terms of the plea agreement.
B. Victim Restitution
Defendant contends the trial court abused its discretion by ordering him to pay $26,226 in victim restitution.
"It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." (Pen. Code, § 1202.4, subd. (a)(1).) Thus, "[I]n every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by the court order, based on the amount of loss claimed by the victim. . . ." (Pen. Code, § 1202.4, subd. (f).) The restitution order "shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendants criminal conduct, including, but not limited to, all of the following . . . [¶] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (Pen. Code, § 1202.4, subd. (f)(3)(A).)
Here, the Kelleys paid defendant $30,000 to remodel their kitchen, including the installation of new cabinets and counter tiles. The Kelleys described the type of cabinetry they were seeking in detail. They also took defendant to their neighbors home to show him the specific type of cabinets they wanted him to install. However, defendant did not supply these cabinets. The expert, who inspected the kitchen, reported that defendant installed "low-end cabinets," where the Kelleys had actually described "high-end premium cabinets." Even though defendant never provided the Kelleys with the cabinetry they paid for, the expert estimated the cost of repairing the low-end cabinets to be $10, 427.
This repair estimate is insufficient, because repair is not possible in this situation. The expert conceded that repairing the cabinets would not be enough to give the Kelleys the type of cabinets they requested; the cabinets would have to be taken out and replaced. In order to "fully reimburse the victim or victims for every determined economic loss incurred as a result of the defendants criminal conduct," the defendant must pay for the "replacement cost" of the kitchen cabinets. (Pen. Code, § 1202.4, subd. (f)(3)(A), italics added.)
Relying on People v. Thygesen (1999) 69 Cal.App.4th 988 (Thygesen), defendant contends that the trial court abused its discretion in providing the victim a "windfall." The Thygesen court held that a restitution "award should . . . [be] predicated on the `replacement cost of like property." (Id. at p. 995, italics in original.) Thygesen involved the value of a cement mixer for which neither party provided documentation from which to determine the replacement cost or the loss of use award.
In Thygesen, the court noted that "there was absolutely no evidence presented to the trial court from which a rational determination as to either type of loss could have been made." (Thygesen , supra, 69 Cal.App.4th at p. 995.) Accordingly, due to the "total lack of evidence," the court determined that there was no substantial evidence to support the restitution award. (Ibid.)
In contrast, the trial court here reviewed many estimates for both repair and replacement of the cabinets, including the repair estimate from the Contractors State License Board expert and several contractors bids. These documents allowed the courts to consider both the low estimate of $8,500 for refinishing the cabinets, an estimate lower than the experts repair recommendation, and the high estimate of $32,000 for replacing the cabinets. The court determined that the cabinets must be replaced, and used the middle estimate of $21,226 in determining the restitution award. The trial court did not abuse its discretion when it awarded a total of $26,226 in victim restitution to the Kelleys.
III. DISPOSITION
The judgment is modified to reflect a three-year term of formal probation. In all other respects, the judgment is affirmed.
WE CONCUR: WUNDERLICH, J., MIHARA, J.