Opinion
D059610
06-22-2012
THE PEOPLE, Plaintiff and Respondent, v. PABLO SANTIAGO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN276679)
APPEAL from a judgment of the Superior Court of San Diego County, Steven E. Stone, Judge. Affirmed.
Pablo Santiago pleaded guilty to reckless driving while evading an officer (Veh. Code, § 2800.2, count 1) and operating a motor vehicle under the influence of a drug (Veh. Code, § 23152, subd. (a), count 6), and admitted a prior strike conviction allegation (Pen. Code, §§ 667, subds. (b)-(i), 1170.12 & 668). As part of the plea, the People dismissed the remaining charges for unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a), count 2); knowingly obtaining, concealing, selling or withholding a stolen vehicle from the owner (§ 496d, count 3); receiving stolen property (§ 496, subd. (a), counts 4 and 5); being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count 7); unauthorized possession of a hypodermic needle or syringe (former Bus. & Prof. Code, § 4140, count 8); and driving without a license (Veh. Code, § 12500, subd. (a), count 9). Santiago signed a Harvey waiver and the court sentenced him to prison for four years. Following an evidentiary hearing, the court ordered Santiago to pay $1,695.00 in victim restitution to the owner of the stolen vehicle in which he was apprehended. (§ 1202.4, subd. (f).)
All further statutory references are to the Penal Code unless otherwise specified.
People v. Harvey (1979) 25 Cal.3d 754, 758.
On appeal, Santiago contends: (1) the court erroneously ordered him to compensate the victim for the loss resulting from the theft of the vehicle, because the loss was not caused by the offenses to which he pleaded guilty; (2) the court's restitution order exceeded the scope of the Harvey waiver; and (3) the court applied the wrong legal standard in ordering him to pay victim restitution. We affirm the order.
FACTUAL BACKGROUND
Because Santiago pleaded guilty to counts 1 and 2 and the remaining counts were dismissed, the factual background is taken from the probation report and the testimony of witnesses at the restitution hearing.
At around 5:00 a.m. on May 9, 2010, Carlsbad police officers saw a Mitsubishi Montero swerving on the road. Suspecting the driver (later identified as Santiago) was under the influence of drugs or alcohol, the officers tried to stop the vehicle. Santiago sped up to about 65 miles per hour in a residential area. He swerved into oncoming traffic and drove onto the sidewalk, nearly striking a wall. He eventually slowed to about 25 miles per hour, jumped out of the moving vehicle, and fled on foot. The officers stopped the moving vehicle and confirmed it was stolen.
The officers located and arrested Santiago, a parolee at large with an active warrant. Santiago admitted that he was under the influence of methamphetamine and terazapam at the time he was driving the vehicle and did not stop because he knew he had an outstanding warrant. Santiago told police that a friend let him drive the vehicle.
The next day, the owner of the vehicle recovered it from the tow yard and found items inside that did not belong to her. She contacted police to tell them this and also reported various personal and business items were missing from the vehicle.
The items found in the victim's car included various pieces of paper belonging to two victims of separate vehicle burglaries reported a few days before the vehicle theft in this case. Neither of these victims requested restitution.
Following Santiago's plea and sentencing hearings, the court held a restitution hearing. The victim testified her vehicle was stolen outside her house in Spring Valley on either the evening of May 2 or the morning of May 3, 2010. At the time of the theft, she had various items related to her soap and bath product business inside the vehicle, including display tables, tablecloths, a credit card machine, and all of her inventory, because she was attending a craft fair the next day. She also had several items for her child in the vehicle, including a stroller, playpen, shopping cart cover, car seat, and clothing. A small amount of cash, CDs, and headrests were also taken. The victim also had to pay for impound fees, new license plates, and car cleaning. She claimed $1,695.00 in restitution.
Santiago's mother, Arcilia Barroso Duran, testified at the restitution hearing. She said Santiago was with his girlfriend, Juana Medina, on May 2, 2010. From May 3 (the day the victim reported her car stolen) through May 5, Santiago was with her or his girlfriend. However, Duran worked from 7:00 a.m. until 3:00 p.m. on May 3, and it was possible Santiago could have left the house and gotten a ride with someone else while she was at work. Duran was convicted of a theft-based offense in 2006, and she spent 120 days in jail for felony grand theft in 2008. Duran said she was testifying on behalf of her son because she did not want the same thing to happen to him that happened to her.
Juana Medina, Santiago's girlfriend and the mother of his child, also testified. She said that on May 2, she was with Santiago at his mother's house. On May 3, she worked from 10:00 a.m. until 6:30 p.m. and did not see him during that time. Medina gave birth to Santiago's child on May 6, three days before he was arrested. She did not see Santiago with a vehicle, and he never gave her any children's items.
Santiago testified that a "little surfer dude" named "Lucky" in Pacific Beach gave him the keys to the Mitsubishi Montero on the evening of May 8. He admitted he was "pretty high and drunk" at the time he took the vehicle. Santiago knew the vehicle was stolen, but nevertheless drove it to Carlsbad where he was arrested the next day. He said he did not take any property from the vehicle. Santiago had a prior juvenile conviction for vehicle theft in 2003.
Following the presentation of evidence, the court stated that "it is clear that here the vehicle was stolen[,]" and Santiago admitted he had possession of it for at least two days. The court found it was not "unreasonable to infer that [Santiago] had responsibility for those items that were missing" from the victim's vehicle. Even though others may have been involved with the theft of the vehicle, the court found the involvement of others was "pure speculation" and would only be relevant to "joint and several liability" for the theft. The court ordered Santiago to pay $1,695.00 in restitution to the victim.
DISCUSSION
I
Santiago asserts the court abused its discretion by ordering him to pay victim restitution because: (1) he did not plead guilty to stealing the victim's vehicle or the property inside the vehicle and therefore did not cause the loss, and (2) the victim restitution exceeded the scope of his Harvey waiver.
A
The standard of review for an appeal of a victim restitution order is abuse of discretion. (People v. Mearns (2002) 97 Cal.App.4th 493, 498.) A court abuses its discretion only if its decision is arbitrary or capricious or based on a demonstrable error of law. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382; People v. Jennings (2005) 128 Cal.App.4th 42, 49.) We affirm the order if there is a factual and rational basis for the restitution award. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542; Akins, at p. 1382.) We do not reweigh or reinterpret the evidence presented at a restitution hearing; instead, we determine whether there is sufficient evidence to support the inference drawn by the trier of fact. (People v. Perry (1972) 7 Cal.3d 756, 785, disapproved on other grounds in Any contradictions in the evidence do not support a reversal because we need only determine whether there was any substantial evidence, contradicted or uncontradicted, to support the restitution order. (Estate of Leslie (1984) 37 Cal.3d 186, 201.)
B
The voters of California passed Proposition 8 (also known as The Victims' Bill of Rights) to provide victims with direct restitution "from the persons convicted of the crimes causing the losses they suffer." Following passage of Proposition 8, the Legislature adopted section 1202.4, which provides:
Article I, section 28, subdivision (b)(13) of the California Constitution was adopted as an initiative measure on June 8, 1982. The full text of that section reads:
"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 seek and secure restitution from the persons convicted of the crimes causing the losses they suffer. [¶] . . . Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss."
"[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim . . . in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court." (§ 1202.4, subd. (f).)The court "shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (§ 1202.4, subd. (g).) Victim restitution statutes are to be interpreted liberally and broadly to uphold the intention of the voters to give victims of crime the right to full restitution. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132; People v. Nguyen (1994) 23 Cal.App.4th 32, 43.)
A defendant is entitled to a hearing to "dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) The prosecution's burden of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Baumann (1985) 176 Cal.App.3d 67, 80.) " 'If the circumstances reasonably justify the [trial court's] findings,' the judgment may not be overturned when the circumstances might also reasonably support a contrary finding." (People v. Baker (2005) 126 Cal.App.4th 463, 469, quoting People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
C
Santiago argues the victim restitution order should be reversed because the order includes victim losses he did not cause and exceeds the scope of his Harvey waiver. He argues the agreement to dismiss count 2 (unlawfully taking and driving a vehicle) and count 3 (knowingly obtaining, concealing, selling or withholding a stolen vehicle from the owner) do not relate to the taking of the vehicle's contents. Santiago concludes, without citing any authority, that the scope of restitution is "defined by the parameters of the waiver," and, because his Harvey waiver did not include any charges related to the victim's personal property, the court could not order victim restitution for that property.
We disagree with this narrow interpretation of the effect of Santiago's Harvey waiver. A Harvey waiver expands the scope of what the sentencing court may consider when ordering victim restitution. "A court may also consider crimes which were charged but dismissed [citation]; uncharged crimes, the existence of which is readily apparent from the facts elicited at trial [citation]; or even charges of which the defendant was acquitted, if justice requires they be considered." (People v. Goulart (1990) 224 Cal.App.3d 71, 79.) A Harvey waiver also permits the sentencing court to consider the facts underlying dismissed counts. (People v. Munoz (2007) 155 Cal.App.4th 160, 167.)
Here, Santiago agreed to a standard Harvey waiver on the plea form that contains broad terms: "The sentencing judge may consider my prior criminal history and the entire factual background of the case, including any unfiled, dismissed or stricken charges or allegations or cases when . . . ordering restitution[.]" The court had discretion under this waiver to consider all of the facts surrounding Santiago's arrest, the dismissed theft-based charges, and any unfiled charges underlying the case. The court also had discretion to consider Santiago's entire criminal history, which included a prior vehicle theft. Thus, there was sufficient evidence from which the court could find Santiago was responsible for damages and losses resulting from the theft of the victim's vehicle, including the contents of the vehicle. The scope of Santiago's Harvey waiver, combined with the broad and liberal interpretation of California's restitution statutes, allowed the court to consider more than just direct evidence that Santiago was in possession of the victim's stolen vehicle.
D
Santiago's reliance on People v. Scroggins (1987) 191 Cal.App.3d 502 and People v. Rivera (1989) 212 Cal.App.3d 1153 to support his argument is misplaced. Neither Scroggins nor Rivera presents an appeal of a victim restitution order issued following a defendant's plea with a Harvey waiver. As we discussed, a Harvey waiver alters the scope of the factors a sentencing court may consider when ordering victim restitution.
Further, both Scroggins and Rivera rely on People v. Richards (1976) 17 Cal.3d 614 as the basis for their holdings that restitution was improper. (Scroggins, supra, 191 Cal.App.3d at pp. 506-507; Rivera, supra, 212 Cal.App.3d at pp. 1161-1162.) In Richards, the Supreme Court held that if a restitution order requires payment for a loss not caused by the conduct for which the defendant was convicted, the order does not serve a rehabilitative purpose "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 . . . ." (Richards, at p. 622.) However, in People v. Carbajal (1995) 10 Cal.4th 1114, the California Supreme Court expressly disapproved Richard's "state of mind" nexus between the criminal conduct and the victim's specific losses to justify a restitution order. The court made clear the broad scope of a sentencing court's discretion to order restitution to meet the statutory goals of requiring a defendant to "make amends 'to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the [defendant].' " (Carbajal, at p. 1126.) "That a defendant was not personally or immediately responsible for the victim's loss does not render an order of restitution 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.)
Here, even though Santiago might not have been personally or immediately responsible for the loss of the victim's property, the restitution order is still valid. The court's restitution order was reasonably related to the charges he unlawfully took and drove the victim's vehicle and knowingly obtained, concealed or withheld it from the owner. The court believed the victim's testimony that the personal and business items were in her vehicle at the time it was stolen. It was not unreasonable for the court to infer that Santiago was responsible for those missing items. Given the broad and liberal scope of restitution under section 1202.4 subdivision (f), and Santiago's Harvey waiver, we conclude the court's victim restitution order was proper.
II
Santiago also claims his due process rights were violated because the court did not use a rational method to impose victim restitution. (People v. Giordano (2007) 42 Cal.4th, 644, 663-664.) He argues the court ordered victim restitution because it was not unreasonable to infer Santiago was responsible for the victim's losses rather than finding by a preponderance of the evidence that he caused the victim's losses.
The sentencing court has broad discretion to impose restitution, but the method used must be rationally designed. (See People v. Giordano, supra, 42 Cal.4th at pp. 663-664.) Due process concerns are satisfied at a restitution hearing when substantial evidence is presented in support of a particular restitution amount the court finds true using a preponderance of the evidence standard of proof. Here, we have concluded there is substantial evidence to support the victim restitution order using the preponderance of the evidence standard and there has been no denial of due process.
DISPOSITION
The restitution order is affirmed.
McDONALD, J. WE CONCUR: BENKE, Acting P. J. AARON, J.