P. v. Gheith

Filed 6/30/08 P. v. Gheith CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

PROCEDURAL HISTORY

Appellant Khalid Gheith was charged with four felony counts: auto burglary, receiving stolen property, possession of oxycodone, and possession of hydrocodone. All of the charges arose from the same incident on November 22, 2005. Appellant was also alleged to have been on bail in another matter at the time of the new offenses. Appellant pled guilty to felony receiving stolen property with the understanding that he would be placed on probation. At the time of the plea, the court informed him: Youre to pay any out-of-pocket restitution owing in this case. The balance of the complaint was dismissed.[1]

FACTS[2]

Between September 11, 2005, and December 31, 2005, the San Francisco Museum of Modern Art (SFMOMA) experienced a rash of auto burglaries in its public garage. SFMOMA asked its privately contracted security service to add an additional guard to help stem the burglaries. When the burglaries continued, SFMOMA hired another security service to conduct a surveillance operation, which began on November 18, 2005. On November 22, undercover surveillance staff arrested appellant after he was observed smashing a car window and removing a laptop computer. The burglaries ceased immediately. The undercover operation was discontinued, but the additional security guard was maintained through the end of the year.

At a restitution hearing, SFMOMA claimed out-of-pocket expenses of $23,727.86, consisting of the cost of additional guard services for the September 11 through December 31 period ($21,127.86) and the cost of the five-day surveillance operation ($2600). SFMOMA did not ask for restitution for the damage to the car window or for the laptop, which was recovered. According to the SFMOMA representative, the cost for security services on November 22 only was $636: $136 for the additional guard and approximately $500 for the surveillance operation.

Appellants counsel objected to the figure sought, arguing there was no basis to attribute any other burglaries at the garage to appellant. Counsel argued the $636 figure was more reasonable, plus the cost of the window. The court ruled, as follows: No, Im going to cut it down to 15,000, and thats it. I think theres a basis for me to impose $23,728. I am giving him a break, so its $15,000. When counsel pressed the court as to its reasoning, the court continued: I think he can be charged with the entire amount, and I think theres an inferenceIm not going to say it ten times. And I split the baby. If you dont want me to split the baby, maybe Ill put it back up. [] Im splitting the baby because in some essencehe did not plead to those other offenses, although I think theres a reasonable inference that he committed them. Thats why I let him get away with 15,000 instead of 23,000, which is a big difference.

ANALYSIS

Appellant contends the restitution award was not supported by substantial evidence and lacks a rational basis. When granting probation, the trial court has broad discretion to  impose and require . . . [such] reasonable conditions[ ] as it may determine are fitting and proper to the end that justice may be done, that amends may be made 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 probationer.  (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121 (Carbajal), quoting Pen. Code,  1203.1, subd. (j).) The court in Carbajal continued: The trial courts discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute. In addition, we have interpreted Penal Code section 1203.1 to require that probation conditions which regulate conduct not itself criminal be reasonably related to the crime of which the defendant was convicted or to future criminality. As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or   exceeds the bounds of reason, all of the circumstances being considered.  [ ] [] . . . 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 [ ], by conduct underlying dismissed and uncharged counts [ ], and by conduct resulting in an acquittal [ ]. There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. [ ] [] . . . [] . . . [N]othing in Proposition 8 or in Penal Code section 1203.04 purports to limit or abrogate the trial courts discretion, under Penal Code section 1203.1, to order restitution as a condition of probation where the victims loss was not the result of the crime underlying the defendants conviction, but where the trial court finds such restitution will serve one of the purposes set out in Penal Code section 1203.1, subdivision (j). (Id. at pp. 1121-1122.)[3]

The law on this point is clear. The trial court has broad discretion to fashion a restitution award as a condition of probation that is not limited by the charges of which the defendant is found guilty but which is consonant with one or more of the goals of Penal Code section 1203.1, including the rehabilitation and reformation of the defendant.[4] Certainly, the record contains a factual basis that SFMOMA suffered a loss of $23,727.86, in late 2005 due to a rash of auto burglaries. There was no evidence that appellant committed any of the SFMOMA burglaries, other than the one resulting in his arrest on November 22, 2005. The question is whether the court abused its discretion in awarding a figure substantially greater than the $636, which represented the security costs for the day of appellants arrest only.

In Carbajal, supra, 10 Cal.4th 1126-1127, the Supreme Court upheld, as within the trial courts proper exercise of discretion, a condition of probation whereby a defendant convicted of hit-and-run was required to pay restitution for the property damaged in the accident, even though fault for the accident is not an element of the offense of which he was convicted. The court reasoned: [Vehicle Code] [s]ection 20002 [was] undoubtedly enacted by the Legislature to protect owners of unattended vehicles from financial loss caused by irresponsible persons who damage such vehicles and attempt to escape liability by departing from the scene of the accident without leaving any identification or evidence by which to trace them. [Citation] We find, therefore, that a trial court could properly determine restitution would serve a salutary rehabilitative purpose by directing the defendant to accept the social responsibility he attempted to evade when he fled the scene without identifying himself. Conditioning probation on restitution under these circumstances would serve the rehabilitative purposes specified in Penal Code section 1203.1. (Id. at pp. 1124-1125, fn. omitted.)

The court in Carbajal, supra, 10 Cal.4th at p. 1126, specifically disapproved People v. Richards (1976) 17 Cal.3d 614, as follows: [I]nsofar 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. That potential (and now disapproved) reading of Richards was relied on by the court in People v. Scroggins (1987) 191 Cal.App.3d 502, 506-507 (a case relied on by appellant here), to strike a restitution award. In Scroggins,four burglaries occurred in an apartment complex on two consecutive days. The defendant was found in possession of property from one of those burglaries and pled guilty to receiving stolen property. (Id. at p. 504.) In striking a condition of probation that required the defendant to pay restitution for losses arising from all the burglaries, the appellate court wrote: Nor can we accept [the Peoples] statement that the state of mind for burglary and the state of mind for receiving stolen property are congruent because each crime results in deprivation of property to the victim. (Id. at p. 507.) In light of the disapproval of Richards, the continued validity of Scroggins is questionable. Thus, the fact that appellant was convicted of receiving stolen property, rather than burglary, is not dispositive, particularly on these facts, where there is no dispute that appellant was observed committing an auto burglary.

In In re I. M. (2005) 125 Cal.App.4th 1195, Division One of this court upheld a juvenile courts imposition, as a condition of probation, of $15,184.43 in restitution for funeral expenses even though the minors role was as an accessory after the fact to a murder committed by fellow gang members. The appellate court noted the rehabilitative purpose of the restitution order in forcing the minor to recognize the effects, particularly financial, attendant to criminal activity such as his own. (Id. at pp. 1199, 1210.)

Additionally, in the adult criminal justice system [p]robation is an act of leniency, not a matter of right. [Citations.] (People v. Walmsley (1985) 168 Cal.App.3d 636, 638-639.) If the terms of probation appear too onerous to a defendant, he always has the option of rejecting probation. While such circumstances might rightly be described as the horns of a dilemma for a defendant, the court has not abused its discretion if the terms of probation are otherwise appropriate. That is, if a court has properly exercised its discretion in imposing a term of probation, the defendant is not entitled to strike that term simply because it will be difficult to satisfy. Here, while the requested restitution is substantial, we cannot say that the court would have abused its discretion in awarding the full amount in light of the various goals of probation. Furthermore, we cannot say the court abused its discretion in choosing the lesser figure of $15,000, as a further act of leniency.

The judgment is affirmed.

_________________________

REARDON, J. *

We concur:

_________________________

JONES, P. J.

_________________________

SIMONS, J.

        Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] As part of the plea agreement, appellants separate misdemeanor burglary case was dismissed with an agreement that any restitution from that matter would be part of the courts restitution order in the felony case.

[2] Because appellant pled guilty prior to a preliminary examination, the factual record is brief. The facts are undisputed by the parties and are drawn, largely, from the probation report and the restitution hearing.

[3] Article I, section 28, subdivision (b), provides in pertinent part: 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 the losses they suffer.

Penal Code section 1202.4, subdivision (a)(1) provides: It is the intent of the Legislature 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.

[4] When a defendant is sentenced to prison, the various goals of a grant of probation and its conditions do not pertain. In that event, the award of restitution must be more strictly tied to the offenses of which the defendant was convicted: That is not to say that an acquittal on one count will preclude the imposition of a restitution order under all circumstances. We merely hold that in the nonprobation context, a restitution order is not authorized where the defendants only relationship to the victims loss is by way of a crime of which the defendant was acquitted. (People v. Percelle (2005) 126 Cal.App.4th 164, 180.)