P. v. Brown
Filed 8/13/13 P. v. Brown
CA2/8
NOT TO BE PUBLISHED IN THE
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
IBRAHIM BIMABDULHAKI
BROWN,
Defendant and Appellant.
B244821
(Los Angeles
County
Super. Ct.
No. KA094247)
APPEAL,
from an order of the Superior Court
of
County. Bruce F.
Marrs, Judge. Affirmed as modified.
Renée
Paradis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
Ibrahim B. Brown pled no contest to
one count of receiving stolen property
in violation of Penal Code section 496, subdivision (a).
erred in ordering Brown to pay restitution for stolen property that was never
in his possession. We strike the
restitution order.
On May 5, 2011, Brown was arrested when police pulled him
over in a traffic stop and discovered nine stolen laptops in the car he was
driving. The computers had been stolen
that morning from an elementary school.
At the traffic stop, Brown told a police officer his two
passengers—Trajon Thomas and “Winstonâ€â€”put the laptops in his car. Brown said the laptops might be stolen. Brown later told a police officer that another
man, Jovan Hughes, stole the computers.
Brown indicated Thomas made arrangements with Hughes to pick up the
computers. Thomas told the same police
officer Hughes said the computers were taken in a burglary. Hughes admitted to police that he burglarized
the school. Hughes also admitted
stealing over 40 computers.
Although only nine
computers were recovered from Brown’s car, a total of 49 computers were stolen
from the school, as well as nine LCD projectors. Hughes pled guilty to the burglary of the school. Brown pled no contest to receiving stolen
property, admitted a gang enhancement
allegation (§ 186.22, subd. (b)(1)(A)), and admitted he had suffered one
prior strike (§§ 667, subds. (b)-(i), 1170.12, subdivisions (a)-(d)), one prior
conviction within the meaning of section 667, subdivision (a)(1), and one prior
conviction within the meaning of section 667.5, subdivision (b).
At a restitution hearing,
an employee from the relevant school district testified the replacement cost of
the 40 computers and LCD projectors was $43,604.06. The trial court ordered Brown to pay the
entire restitution amount, jointly and severally with co-defendants Hughes and
Thomas. Brown timely appealed.
Abuse of Discretion
We
agree with the parties that the trial court’s restitution award was in error as
to Brown. As explained in
Cal.App.4th 1310 (Holmberg), where
there is a factual and rational basis for the trial court’s award of
restitution, we will not find an abuse of discretion. However, the restitution order should
reimburse the victim for the economic loss incurred as a result of the
defendant’s criminal conduct.
(§ 1202.4, subd. (f)(3); Holmberg,
at pp. 1320-1321.) In
to charges of concealing stolen property and using a stolen, altered, or
counterfeit access card. (
stolen property and selling it. (
The court ordered the
defendant to pay restitution for the stolen property, which included computers
and computer equipment. In addition to
property police recovered, and property the defendant admitted having possessed,
the victim reported two Ethernet cables were stolen. The prosecution argued that although police
did not recover the cables, they found other stolen computer equipment in the
defendant’s home, thus it was reasonable to believe the person who stole the
other equipment and took it to the defendant’s home also delivered the cables
to him. The Court of Appeal rejected
this argument, noting the defendant had admitted possessing other items that
were not recovered, but he had not admitted possessing the cables. The court concluded insufficient evidence
supported that portion of the restitution award. (Holmberg,
at p. 1325.)
Similarly,
in this case respondent concedes there was no evidence to support the
restitution award as to Brown. There was
no evidence connecting Brown to the 40 unrecovered computers or the nine LCD
projectors. The People did not charge
him with burglary or theft. Brown made
no admissions suggesting he was involved in the actual burglary, or that he
ever had possession of any of the stolen items beyond the nine laptops law
enforcement recovered from his car.
We
therefore must conclude the trial court’s restitution award was an abuse of
discretion as to Brown. We strike the
restitution order.
We strike the restitution award
as to Brown. The trial court is directed
to forward a new abstract of judgment reflecting this modification to the
In all other respects, the order is
affirmed.
BIGELOW,
P. J.
We concur:
RUBIN,
J.
FLIER,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code.
filed a prior appeal in this court, challenging the trial court’s calculation
of presentence custody credits. In an
unpublished opinion we determined the trial court incorrectly calculated
Brown’s custody credits and modified the judgment accordingly. (
notice of the record in the prior appeal.
Our summary of facts is taken from the preliminary hearing transcript.
