Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. SWF012479 of Riverside County. John G. O’Rourke, Judge. (Retired Judge of the Kings Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Law Office of Steve Aldaco and Steve Aldaco for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King J.
Defendant pled guilty to one count of grand theft. (Pen. Code, § 487, subd. (a).) As part of her plea, defendant agreed to pay victim restitution in an amount yet to be determined. After a later hearing to determine that amount, the court ordered defendant to pay a total of $19,334.40. Defendant appeals, essentially contending that there were two separate thefts of the victim’s property and that she was only responsible for the first theft; hence, she argues, the court erred in determining she was responsible for restitution of the total value of all the stolen property. We find the court’s determination of victim restitution was well within its discretion and, therefore, affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
The People charged defendant by felony complaint with one count of grand theft (§ 487, subd. (a)) in that “on or about April 3, 2005, in the County of Riverside, State of California, she did wilfully and unlawfully take money and personal property of a value exceeding Four Hundred Dollars ($400.00), to wit, GARDENING SUPPLIES, the property of TERRY BUTTS.” In return for her plea, the People agreed to dismiss a prior misdemeanor and failure to appear. At the oral taking of defendant’s plea, the court expressly indicated that defendant would be required to pay victim restitution, to which she expressed comprehension. The court asked defendant: “[I]s it in fact true that on or about April 3rd, 2005, in the County of Riverside, you did willfully, unlawfully take money and/or personal property of a value exceeding $400 that was the property of Terr[y] Butts?” Defendant replied that it was. Defendant initialed the provision of her plea agreement indicating she would “further be ordered to pay restitution to the victim.” The court placed defendant on formal probation for three years, the terms and conditions of which required that defendant be committed to county jail for 90 days and pay victim restitution in an amount yet to be determined.
The restitution hearing was delayed for nearly two years. At that hearing, the following facts were adduced. Terry Butts owned a padlocked 40-foot storage container that he left on a vacant lot he was in the process of converting to use as a wholesale nursery. The storage unit contained numerous items for use in the contemplated nursery and corresponding retail store, including toilets, windows, a stove, and approximately 150 bags of fertilizer. Another 150 bags of fertilizer were stored around the outside of the storage facility under a tarp. The last time Butts visited the site prior to discovering the theft was sometime in late February 2005. On April 3, 2005, Butts noticed that the padlock on the storage container had been cut and the items in and around it had been stolen, so he reported the incident to the police.
Butts discovered a number of his stolen fertilizer bags at another nursery. Butts purchased back 45 bags of fertilizer from the owner of that nursery. The owner told Butts he had purchased the fertilizer bags from defendant at several times between February 20, 2005, and March 30, 2005, although the owner was not precisely sure of the dates. Butts later spoke to defendant at her parents’ home. She admitted taking a “laundry list[] of stuff” from Butts, had 10 bags of Butts’s fertilizer at her parents’ home, and informed him that she left many of the items she had taken behind a market in order to get rid of them because she could not fence them.
Defendant testified that she stole only fertilizer bags from the outside of Butts’s storage container; she never entered it. She admitted that she had stolen the fertilizer bags on three separate occasions. On the first occasion, she removed the spare tire in her trunk so that she would have more room in her car for the purloined fertilizer bags. She placed the spare tire in the bushes nearby. Approximately a month after the final time defendant absconded with fertilizer bags, she returned and collected her tire. On all three occasions during which defendant stole fertilizer bags, the storage facility was locked; however, at some point after she retrieved her spare tire, she noticed that the storage container was unlocked and that the doors were wide open. Defendant also admitted selling the fertilizer bags on three separate occasions to the other nursery.
Defendant’s recalled chronology of events was, at best, confused. Defendant initially indicated that the first occasion on which she purloined the fertilizer bags occurred in mid-February 2005 and the second time occurred “about a week later.” However, she later clarified that the first time occurred in mid-January 2005, the second time two weeks later, and the third time another two weeks after that, i.e., sometime in mid-February. Nonetheless, she testified the last time she sold fertilizer bags to the other nursery was at the beginning of February. It was March when she returned to reclaim her spare tire. Defendant did not give an approximate date as to when she saw the storage container open, though she admitted it was subsequent to her retrieval of the tire. Defendant admitted on cross-examination that she understood she was required to pay restitution to the victim in an amount later to be determined when she pled guilty.
At the restitution hearing, Butts produced a three-ring binder containing a summary of the items which had been stolen, the dollar values of those items, and supporting documents showing where the dollar values were derived from. Butts claimed the total amount of property lost in the theft amounted to $21,462. Butts also claimed reimbursement for incidental matters, including gas, phone calls, and hours expended in assisting law enforcement in the matter. Including Butts’s incidental claims, his total requested amount of restitution was for $26,162.57. The binder was identified and admitted into evidence as exhibit 1. The court ordered victim restitution in the amount of $19,334.40.
II. DISCUSSION
“Trial courts have broad discretion to order victim restitution and such an order will not be reversed if there is a ‘factual and rational basis for the amount of restitution.’ [Citation.]” Such exercise of discretion is, however, not unlimited and will be reversed if it is arbitrary or capricious. (People v. Rubics (2006) 136 Cal.App.4th 452, 462.) “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. [¶] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” (Cal. Const., art. I, § 28, subd. (b); People v. Rubics, supra, at pp. 456-457.)
In essence, defendant makes the same argument she made below: There were two separate thefts of Butts’s property and that she may only be held liable for victim restitution in the amount of the stolen property that she, herself, admits that she took. However, no evidence established that there was a subsequent theft. The only mention of a theft separate and apart from that of defendant’s was made by defense counsel below. Statements of attorneys are not evidence. While at one point Butts indicated that he “was told by this young lady here there were two people involved with [the theft,]” it is unclear to whom Butts was referring. Even if we could assume he was referring to defendant, this would not amount to evidence that there was a separate theft involving another individual. Rather, the court could clearly take this statement as an indication that defendant had an accomplice in undertaking the theft of Butts’s property. If such were the case, it would be entirely proper for the court to order defendant to pay victim restitution in full because defendants are liable jointly and severally for the full amount of economic loss. (People v. Madrana (1997) 55 Cal.App.4th 1044, 1049-1052; People v. Goss (1980) 109 Cal.App.3d 443, 460-461.)
Moreover, determinations of credibility and the truth and falsity of the facts on which such determinations are made are trial court functions. (People v. Jones (1990) 51 Cal.3d 294, 314; People v. Anderson (1991) 1 Cal.App.4th 318, 322.) Here, the trial court would have been well within its discretion in determining that defendant’s self-serving statements that she only took the fertilizer bags lying outside the storage container were not credible. Indeed, defendant herself gave internally conflicting accounts of the time line for her crimes. She originally testified that her first theft was committed in mid-February 2005, but later indicated it was actually mid-January 2005. Defendant also originally indicated she committed the second theft one week after the first, but later testified it was two weeks after the first. The court could have reasonably construed defendant’s clarifications as attempts to put herself in the “safe zone,” i.e., make it appear that all her crimes took place in the time frame prior to the last time Butts noticed the storage container was still intact. Thus, defendant could escape liability for any of the property taken from inside the storage container. Indeed, this is precisely the tact taken by the prosecutor in his cross-examination of defendant.
Likewise, defendant indicated the third and last time she sold bags of the stolen fertilizer to the other nursery occurred at the beginning of February; however, she testified the third and last time she stole the bags of fertilizer was in mid-February. This left the court with two possible explanations of defendant’s behavior: (1) defendant committed the first two thefts of the fertilizer bags, but sold the resultant booty in three separate batches to the other nursery and committed a further theft without selling any of that plunder to the nursery, or (2) defendant sold the bags of fertilizer to the other nursery in three separate batches, corresponding to each of her thefts, and was simply lying or did not accurately remember the dates and order in which the events had actually occurred. While the former scenario is supported in some degree by the fact that defendant still retained some of the fertilizer bags at her mother’s house, the court was well within its discretion to the extent that it believed the latter.
Furthermore, defendant’s version of the chronology of events was simply not believable when compared to Butts’s. Butts testified the last time he visited the site prior to noticing the theft was at the end of February. He had left 150 bags of fertilizer under a tarp around the storage container. It simply defies credulity to believe defendant’s version of events in which she had already completed three separate thefts of the property prior to Butts’s last visit to the site, yet Butts failed to notice that any property had been taken. Indeed, the contention that the thefts were committed after late February is additionally supported by defendant’s admission that she was at or near the subject property at least twice in March. It was in March that defendant returned to the property to reclaim her spare tire. On a subsequent date, she noticed that the storage container was unlocked and “wide open.” Finally, defendant admitted to Butts that she had taken a “laundry list[] of stuff” from him and that those items she could not sell, she left behind a market. A “laundry list[] of stuff” certainly implies more than simply fertilizer bags. Likewise, since we know she already had a willing purchaser of fertilizer bags, the fact that she left behind unmarketable items also strongly suggests she stole more than just fertilizer bags.
Finally, and most importantly, defendant had already pled guilty to grand theft of the items stolen from Butts’s nursery site as charged in the complaint. The complaint alleged defendant had “wilfully and unlawfully take[n] money and personal property of a value exceeding Four Hundred Dollars ($400.00), to wit, GARDENING SUPPLIES, the property of TERRY BUTTS.” While one might not naturally consider toilets, windows, and a stove as gardening supplies, there is no doubt that such objects are of necessity in running a nursery, in which case it would be reasonable for the court to construe them as gardening supplies. Moreover, they are certainly the property of Butts. Likewise, many of the other objects listed in exhibit 1 that were not fertilizer bags were certainly gardening supplies. Exhibit 1 lists a number of stolen gardening supplies, including shovels, a hoe, a post hole digger, rakes, plant food, snail killer, and other such items. Furthermore, in defendant’s admission to a factual basis for her plea, she in no way limited the plea to gardening supplies or fertilizer bags. The court asked her if she had in fact taken “money and/or personal property of a value exceeding $400 that was the property of Terr[y] Butts?” She replied that she had. Similarly, both the complaint and defendant’s plea indicated the crime took place “on or about April 3rd, 2005.” This certainly conflicts with defendant’s contention that all her thefts had been completed by the end of February 2005. Finally, at sentencing, defendant did not attempt to show that she was not responsible for the stolen property above and beyond the fertilizer bags. “Had she so requested, she should have been entitled to present evidence at the probation hearing tending to prove she was not responsible for the [remaining stolen items].” (People v. Phillips (1985) 168 Cal.App.3d 642, 650.) Here, where defendant pled guilty to the crime as charged, there was more than sufficient evidence produced that she was culpable for the entire loss sustained by Butts. If there was any confusion regarding precisely what she was pleading to, this should have been resolved at that time, not years later at the hearing on restitution. Thus, the trial court was well within its discretion in its determination of the amount of victim restitution.
Defendant further contends that the court should have considered her ability to pay in determining the amount of victim restitution. As correctly noted by the People, courts are specifically forbidden from considering a defendant’s inability to pay in determining the amount of victim restitution: “The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of a restitution order.” (§ 1202.4, subd. (g); see also People v. Rivera (1989) 212 Cal.App.3d 1153, 1159.)
All defendant’s case citations to the contrary are unavailing. In People v. Sandoval (1989) 206 Cal.App.3d 1544, the court specifically noted that courts are not required to consider a defendant’s ability to pay when ordering victim restitution. (Id. at p. 1550.) People v. Cervantes (1984) 154 Cal.App.3d 353 determined that trial courts may not delegate their responsibility in determining restitution amounts to probation officers. It nowhere dealt with the issue of whether a defendant’s ability to pay should be considered in imposing victim restitution. Similarly, in People v. Phillips, supra, 168 Cal.App.3d 642, the court’s decision in no way dealt with the defendant’s ability to pay court-ordered restitution, but discussed how strong the causal link must be between the defendant’s behavior and the victim’s loss before the court could properly order victim restitution. In People v. Hartley (1984) 163 Cal.App.3d 126, the court held that the defendant was entitled to a hearing both to address the determination of the amount of victim restitution and the propriety of requiring such restitution where the defendant’s ability to pay was questionable. While the latter portion of that decision’s holding appears to support defendant’s contention, we note that the court reasoned this was so only where restitution was imposed as a condition of probation and where such an order would “be no more than a meaningless act, subjecting defendant to a condition he had no hope of satisfying.” (Id. at pp. 130-131.) Here, while the court did order victim restitution as a condition of probation, it is apparent that the victim restitution was imposed primarily pursuant to section 1202.4 as a condition of her plea bargain. Moreover, the ordered victim restitution would not necessarily be a futile act because it would remain enforceable as a civil judgment even after defendant’s release from probation. (§ 1202.4, subds. (a)(3)(B) & (i).) Furthermore, unlike in Hartley, defendant here received a hearing on the amount of restitution, but she failed to adduce any evidence regarding her ability to pay. Thus, the court did not err in failing to determine defendant’s ability to pay the amount of court-ordered victim restitution both because it was statutorily forbidden from doing so and because the defendant failed to produce any evidence of an inability to pay at the hearing on the matter.
Finally, defendant’s contention that the court was required to obtain a Harvey waiver in order to impose victim restitution over and above the criminality admitted by defendant in her plea is unavailing. As noted by the People, the Harvey court concluded that “[i]mplicit in such a plea bargain . . . is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, [] dismissed count[s].” (People v. Harvey, supra, 25 Cal.3d at p. 758.) Here, no counts against defendant were dismissed as the People charged defendant with no other count than that for which she pled guilty. Thus, the court did not consider, and defendant did not suffer for, any behavior outside of that which defendant had already admitted in determining the amount of victim restitution to order.
People v. Harvey (1979) 25 Cal.3d 754.
III. DISPOSITION
The judgment is affirmed.
We concur: Ramirez P.J., Miller J.