Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF196390, Paul A. Vortmann, Judge.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
Appellant, Justin Max McPherson, pled no contest to receiving stolen property. On February 20, 2008, the court suspended execution of sentence and placed McPherson on probation for three years on condition he serve one year in local custody. On appeal, McPherson contends the court abused its discretion in ordering him to pay $4,196 in victim restitution. We will affirm.
FACTS
On October 15, 2007, Jeremy and Tiffany Macklin reported that their house had been burglarized. Wedding bands and a digital camera were among the items taken from their house.
On October 22, 2007, Melanie Sheppard’s and Rachel Gomez’s houses were burglarized. Sheppard lived immediately north of McPherson’s residence and Gomez lived directly across the street from Sheppard. Sheppard reported numerous items missing including a laptop computer, a black and yellow duffle bag, a Game Station 2 console, 35 to 40 games, a digital camera, a marine star watch, an iPod, and a Gameboy.
On October 29, 2007, David Hall’s home was burglarized. Hall reported missing a fixed blade knife with a sheath, a Marine Corps watch, a brown billy club, and a leather knife case and numerous coin paper sleeves. Hall’s home was located directly south of McPherson’s residence.
On October 30, 2007, a Visalia police officer interviewed McPherson’s mother, Janet Johnson, and McPherson’s sister. Johnson stated she accompanied McPherson to Don’s Southside Pawn Shop on October 17, 2007, and pawned two rings and a camera for McPherson because he did not have a driver’s license. Johnson and McPherson’s sister told the officer that they had seen McPherson in possession of a laptop computer but did not know where it was currently located. Johnson had seen McPherson with an iPod the previous week. Johnson also gave the officer some costume jewelry that was in the closet of the room she shared with McPherson.
During a consent search of McPherson’s house, an officer found a suitcase belonging to Gomez in a hallway. A search of McPherson’s bedroom uncovered the above-noted property that was taken from the Hall residence, and a duffle bag that belonged to Sheppard.
On October 30, 2007, during a police interview, McPherson stated that he got the items found in his bedroom from a friend two to three days earlier and that he did not know anything about a Toshiba laptop. When the interviewing officer told him that was impossible with respect to the items taken from the Hall residence, McPherson reiterated that he bought all the items two to three days earlier from friends. When pressed for the name of the friend, McPherson stated that he got the property from three males he met at a park. During continued questioning, McPherson stated that he pawned the laptop at Best Jewelry and Loan.
On November 1, 2007, Johnson turned over to Sheppard the jewelry that Johnson had found in her house. Sheppard showed the jewelry to Gomez and she identified it as belonging to her.
On October 31, 2007, two officers checked with Best Jewelry and Loan and were informed that McPherson had not pawned any property there.
On November 1, 2007, the Macklins identified and claimed the rings and camera that had been pawned by Johnson and McPherson.
On January 3, 2008, the district attorney filed a complaint charging McPherson with two counts of receiving stolen property.
On January 23, 2008, McPherson pled no contest to count one with a Harvey waiver as to the dismissed count after count 1was amended to include receiving stolen property on two dates, October 17 and October 29, 2007. In exchange for his plea, the court agreed to impose a suspended prison sentence and place McPherson on probation for five years on condition he serve one year local time.
People v. Harvey (1979) 25 Cal.3d 754.
At a restitution hearing on May 1, 2008, the court ordered McPherson to pay Sheppard restitution in the amount of $4,196.24. This amount was based on a claim of $5,145.44 that Sheppard filed with her insurance company, less depreciation of $949.20.
DISCUSSION
McPherson contends that the prosecutor failed to prove he was responsible for the uncharged burglary involving the Sheppard residence. Thus, according to McPherson, the court erred in ordering him to pay restitution for items taken during that burglary which were not found in his possession. We disagree.
In People v. Lent (1975) 15 Cal.3d 481, the Supreme Court established a three-part test for determining the validity of a condition of probation: “A condition of probation will not be held invalid unless it ‘(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 ….’” (Id. at p. 486.)
“Restitution has long been considered a valid condition of probation. [Citation.] … California courts have long interpreted the trial courts’ discretion 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. Under certain circumstances, restitution has been found proper 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 [citation].” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, fn. omitted.)
The standard for determining whether restitution should be ordered and for setting the amount is by a preponderance of the evidence. (People v, Baumann (1985) 176 Cal.App.3d 67, 81.) A court’s restitution order is reviewed for abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.)
Conscious possession of stolen property is so incriminating that only slight corroboration is needed to show a defendant’s guilt. This inference is applicable to a defendant charged with robbery, burglary, and possession of stolen property. (People v. McFarland (1962) 58 Cal.2d 748, 754.)
On October 29, 2007, McPherson was found in possession of property that was taken during recent burglaries of several neighbors’ homes. Based on the evidence, the court could reasonably find that on October 30, 2007, McPherson lied when he told an officer that he purchased property taken from the Hall residence three days earlier because it was undisputed that the burglary occurred the day before the interview. The court could also reasonably find from McPherson’s conflicting statements that he was untruthful when he stated he did not know anything about a Toshiba laptop; that he got the stolen items found in his possession from a friend; and that he obtained the items from three men. Thus, in accord with McFarland, we conclude that the trial court could reasonably find that McPherson also committed the burglaries from which the stolen property found in his possession was taken, including the burglary of the Sheppard residence.
However, even if the record did not support the conclusion that McPherson committed the Sheppard burglary, we would still uphold the court’s restitution order. In People v. Goulart (1990) 224 Cal.App.3d 71 (Goulart), the defendant was convicted of unlawfully interfering with a line erected and maintained by a public utility company for transmitting electricity, and “similar charges” were dismissed, with a Harvey waiver. (Goulart, supra, at p. 77.) The appellate court upheld an order that the defendant pay more than $42,000 in restitution as a condition of probation, even though the restitution order reflected “energy thefts during time periods which [the defendant] was not, and some of which he could not have been, charged.” (Id. at p. 79.) The court concluded that the restitution order would serve to rehabilitate the defendant. (Ibid.)
Goulart illustrates the following principle: “That a defendant was not personally or immediately responsible for the victim’s loss does not render an order of restitution [as a condition of probation] improper.… [T]he question simply is whether the order is reasonably related to the crime of which the defendant was convicted or to future criminality.” (In re I.M. (2005) 125 Cal.App.4th 1195, 1209 (I.M.).)
I.M. is also instructive. In that case, the juvenile court sustained a wardship petition alleging a minor had been an accessory after the fact (Pen. Code, § 32) to a murder and that in committing that offense, he had acted with the specific intent to benefit, promote, further or assist the unlawful conduct of a criminal street gang (§ 186.22, subd. (b)(1)). The juvenile court placed the minor on probation and ordered as a condition of probation that the minor pay $15,184.43 in restitution to cover the cost of the victim’s funeral. (I.M., supra, 125 Cal.App.4th at p. 1199.)
The appellate court concluded that although the minor’s conduct did not cause the loss upon which the restitution order was based, the trial court did not abuse its discretion in ordering restitution for that loss. The court stated that because the minor had been found to have been promoting and assisting gang conduct, the restitution order served the rehabilitative purpose of making the minor aware of the consequences of his choice of participating in gang activities, including the emotional and financial impact of gang violence on the family members of the victims. (I.M., supra, 125 Cal.App.4th at p. 1210.)
Admittedly, the gang-related considerations present in I.M. are absent here. An accessory after the fact to a murder, however, assists the perpetrator in getting away with the murder and in that respect, by actions taken after the crime, assists in the criminal enterprise. In a similar way, the act of unlawfully possessing property stolen in a burglary occurs after the burglary and assists in one of the main harms of the burglary --depriving the victim of his or her property. As in I.M., the restitution order is reasonably related to one of the offenses of which appellant stands adjudicated and deters future criminality.
McPherson cites In re Maxwell C. (1984) 159 Cal.App.3d 263 (Maxwell), People v. Rivera (1989) 212 Cal.App.3d 1153 (Rivera), and People v. Scroggins (1987) 191 Cal.App.3d 502 (Scroggins), to support his contention that the court erred in its restitution order. In Scroggins, the defendant was staying at his sister’s apartment when he was found in possession of property taken from four burglaries in the apartment complex. After the defendant pled guilty to receiving stolen property, the court ordered him to pay restitution to three victims whose property was not recovered. In overturning the trial court’s restitution order, the Scroggins court noted that the trial “court did not conclude - nor from this record could it have - that [defendant] was responsible for these other losses that it ordered paid.” (Scroggins, supra, 191 Cal.App.3d 502, 506, italics added.)
In Maxwell, the minor admitted possessing a stolen stereo found in his possession but denied breaking into the car from which it was taken. (Maxwell C., supra, 159 Cal.App.3d at p. 265.) In reversing the trial court’s restitution order requiring the minor to pay for damages to the car resulting from the burglary in which the stereo was taken, the Maxwell court stated, “We also note due process considerations have played an important role in determining whether a particular restitution order may exceed the actual losses from conduct which the accused has been found to have committed. Such orders have been found appropriate where evidence at trial or thereafter shows the requisite connection between the offense committed and all the losses for which restitution is ordered. [Citation.] The orders are invalidated where there is no evidence in the record from which the trial court could rationally conclude the probationer was responsible for other losses ordered paid. [Citation.]” (Id. at p. 266, italics added.)
In Rivera, after the defendant was caught burglarizing Eric Myrmel’s garage, a search of his car uncovered $800 worth of tools that were taken during a burglary at Mary Swett’s house. (Rivera, supra, 212 Cal.App.3d at p. 1156.) The trial court ordered the defendant to pay Swett $1,200 for tools that were taken from her garage, but not recovered. (Id. at pp. 1156-1157.) In reversing this portion of the restitution order, the Rivera court noted that there was no evidence that the defendant was responsible for the losses suffered by victim Swett. (Id. at p. 1162.)
None of these cases are valid authority because they relied on reasoning from People v. Richards (1976) 17 Cal.3d 614, 622, which has been explicitly disapproved of by our Supreme Court. (Cf. Maxwell C., supra, 159 Cal.App.3d at p. 266 [restitution not proper under Richards because the “state of mind with which the burglary or vandalism are committed is different than that required for receiving stolen property”] with Carbajal, supra, 10 Cal.4th at p. 1126 [“insofar as Richards may be read to require that trial courts refrain from conditioning probation on restitution ‘unless 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 …’ [citation], we disapprove it”].) (Scroggins, supra, 191 Cal.App.3d at pp. 505-506, Maxwell C., supra, 159 Cal.App.3d at p. 266, Rivera, supra, 212 Cal.App.3d at pp.1161-1162.) Further, unlike the cases cited by McPherson, here there is evidence from which the trial court could reasonably conclude that McPherson committed the uncharged burglary. Accordingly, we conclude that the court did not abuse its discretion when it ordered McPherson to pay $4,196.24 victim restitution to victim Sheppard.
McPherson also contends that the court’s victim restitution order should be reduced by the value of items returned to Sheppard. We need not discuss this contention because McPherson did not advance any supporting argument or authority. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 [“A reviewing court need not discuss claims that are asserted perfunctorily and insufficiently developed”].) Nevertheless, we note that the court ordered McPherson to pay Sheppard $4,196.24 based on a claim of $5,145.44 that she filed with her insurance company, less depreciation of $949.20. Presumably the insurance company agreed to pay only for items that were not recovered. Thus, the record supports the court’s restitution order requiring McPherson to pay Sheppard $4,196.24.
DISPOSITION
The judgment is affirmed.