Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR915835
Siggins, J.
Defendant Dwayne Hatch challenges the measure of a restitution award following his no contest plea to one count of receiving stolen property. He argues that he should not be required to pay restitution for items that were stolen from the victim, but never found in his possession. We agree and reverse the restitution award.
As part of defendant’s plea, he admitted the truth of allegations that he served two prior prison terms. He raises no challenge based upon use of those prior terms to enhance his sentence.
FACTUAL AND PROCEDURAL HISTORY
In light of defendant’s no contest plea, we will base our discussion of the facts on his probation report.
Defendant was taken into custody when Lake County sheriff’s deputies responded to a call regarding a physical altercation. Defendant had been confronted and detained by Jessica Biagini, Brian Hart, and Brandon Moore. Biagini and Hart explained the circumstances of defendant’s detention to one of the deputies.
Biagini told the deputy that she reported Hart’s cellular phone, her purse, and the $350 it contained stolen the previous day. She said the items were taken from her car while it was parked at her cousin Brandon Moore’s residence. Following the theft, Biagini called Hart’s stolen cellular phone and it was answered by an unknown male. He told Biagini that he had not stolen the phone and that the theft was the result of a drug deal gone bad. Biagini arranged to meet the man to get Hart’s phone back, but he failed to appear for the meeting.
The deputy then spoke with Moore, who was an acquaintance of defendant. Moore stated that he overheard Biagini on the phone with the unknown male and recognized the voice as defendant’s. Moore then contacted defendant and asked about the theft. Defendant again denied stealing anything but offered to take Moore to get the cellular phone.
Moore picked defendant up at his residence. Defendant told Moore that he did not have the cellular phone with him. Hart and Biagini were following Moore and defendant in a separate car. Biagini called the stolen cellular phone and Moore heard it ring in defendant’s pocket. Moore pulled the car over, and he, Biagini, and Hart confronted defendant. Defendant attempted to flee, but the three restrained him until law enforcement arrived.
Defendant, who was on parole, was arrested and the cellular phone was returned to Hart. Defendant’s parole officer searched defendant’s residence and vehicle. During the search, the parole officer found a small plastic bindle containing crystal methamphetamine and a syringe.
Defendant was charged with receiving stolen property (Pen. Code, § 496, subd. (a)), possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and misdemeanor possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140). The complaint also alleged a prior strike conviction (Pen. Code, §§ 211, 664, 667, subds. (b)–(i), 1170, subds. (a)–(d)), and enhancements for two prior prison terms (Pen. Code, § 667.5, subd. (b)).
On January 9, 2009, defendant executed a Harvey waiver and entered his no contest plea to receiving stolen property. He also admitted the truth of the two prior prison terms pursuant to an open plea agreement. The prosecution dismissed the remaining counts. The factual basis for the plea stated in part: “... defendant was found in possession of a cellular phone that had been reported stolen the previous day by Jessica Biagin[]i, who had had her purse stolen from her vehicle....”
People v. Harvey (1979) 25 Cal.3d 754 allows a court, with the defendant’s agreement, to consider facts in sentencing that are related to counts dismissed as part of a plea bargain.
The trial court sentenced defendant to an aggregated prison term of five years, consisting of the upper term of three years for receiving stolen property, plus one year for each of the two prior prison term enhancements. The court ordered defendant to pay Biagini victim restitution in the amount of $650, said to represent the purse’s claimed value of $300 and $350 in cash that was in the purse when it was stolen. The sentence was stayed and defendant was referred to the California Rehabilitation Center.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
We review the trial court’s restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) A restitution order that is based on a demonstrable error of law constitutes an abuse of the trial court’s discretion. (People v. Jennings (2005) 128 Cal.App.4th 42, 49.)
II. The Restitution Award Is Improper
Defendant contends that the trial court abused its discretion when it awarded Biagini victim restitution of $650. At the sentencing hearing, defendant’s counsel argued that there was no nexus between defendant’s criminal acts and Biagini’s losses. In particular, defendant was charged in a single count due to his possession of Hart’s cellular phone. He was not charged with theft or possession of Biagini’s purse nor the $350 it contained.
The California Constitution provides that: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.” (Cal. Const., art. I, § 28, subd. (b).) Penal Code section 1202.4, subdivision (a)(1), states 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.”
When a court imposes a prison sentence, Penal Code section 1202.4 limits the scope of victim restitution to losses caused by the defendant’s criminal activity. (People v. Woods (2008) 161 Cal.App.4th 1045, 1049-1050; see People v. Lai (2006) 138 Cal.App.4th 1227, 1246, 1249.) Where a defendant is convicted of receiving stolen property he is responsible only for the return or damage of the stolen property that is found in his possession even though such property may represent only a portion of the property that was stolen. (People v. Rivera (1989) 212 Cal.App.3d 1153.)
In Rivera, the defendant was arrested after he removed tools from a garage in the presence of the victim who reported him to the police. (People v. Rivera, supra, 212 Cal.App.3d at p. 1156.) When the police arrested the defendant, they searched the car he was driving. They found tools belonging to the victim as well as tools belonging to a third party. The car was later determined to be stolen. Tools recovered from the car were returned to the third party, but the trial court also ordered restitution for items that were stolen from the third party but not returned. (Ibid.) In reversing the restitution order, the Fourth District Court of Appeal held that a defendant who is convicted of receiving stolen property is only responsible to pay restitution for stolen property found in his possession. (Id. at pp. 1156, 1162.) He may not be ordered to pay restitution for losses a victim incurs in a theft for property that is not found in his possession. (Id. at p. 1162.)
The Fifth District Court of Appeal, in People v. Baker (2005) 126 Cal.App.4th 463, summarized the holding in Rivera, stating, “where a burglary victim’s property, which was the subject of the defendant’s conviction for receiving stolen property, had been returned, the court erred in awarding restitution for items taken in the burglary which were not found in the defendant’s possession.” (Id. at p. 468.)
The Attorney General contends that defendant is responsible for all the stolen property because the purse and the $350 that was in it were stolen from Biagini’s car at the same time that Hart’s cellular phone was taken. However, defendant entered his no contest plea to receiving stolen property, not burglary, and there are no facts that link defendant to the possession of anything other than Hart’s cellular phone that was returned to Hart at the time of defendant’s arrest.
There are no facts that can support a claim that defendant was responsible for the stolen purse and the $350 it contained. Defendant was not found in possession of either of the items, and there is no evidence in the record which could permit such an inference of possession. To the contrary, defendant’s statements, the complaint, the factual basis for the plea and the probation report make it clear that the only item defendant was shown to have possessed was Hart’s cellular phone. The cellular phone provided factual support for defendant’s receiving stolen property conviction, was returned to Hart and does not represent an item of financial loss.
Similarly, we note that after defendant was in custody, Biagini’s purse was recovered and returned to her due to unexplained circumstances. The value of the purse would thus not represent a loss compensable by restitution even if defendant was linked to the theft.
The trial court abused its discretion when it awarded Biagini victim restitution from defendant in the amount of $650.
DISPOSITION
The order requiring defendant to pay $650 in victim restitution is reversed.
We concur: McGuiness, P.J., Pollak, J.