P. v. White
Filed 6/26/12 P. v.
White CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Amador)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
BRUCE WAYNE WHITE,
Defendant and Appellant.
C069814
(Super.
Ct. No. 06CR10400)
Convicted by plea
of six felonies relating to construction fraud with excessive loss and white
collar crime findings, defendant Bruce Wayne White was sentenced to
years, execution suspended, and was placed on probation for 10 years. The court ordered defendant to serve a year
in jail, to pay, among other things, victim restitution in the amount of
$210,000 at the rate of no less than $1,750 per month commencing 30 days upon
release from jail, and to submit financial declarations to probation every two
months. The court revoked defendant’s
state contracting license.
A petition for
revocation of probation was filed June
14, 2011, alleging that defendant failed to obey all laws and
failed to pay restitution.
After a contested
hearing, the court sustained both allegations finding that defendant drove
under the influence of alcohol or drugs and willfully failed to make
restitution payments.
The court
terminated probation and executed the six-year sentence.
Defendant
appeals. He contends
that he had the ability and willfully
failed to pay restitution. He does not
challenge the evidence supporting the DUI finding. He claims remand is required because the
record does not reflect the court would have terminated probation solely on the
DUI finding. Concluding that sufficient
evidence supports the trial court’s finding that defendant willfully failed to
pay restitution, we will affirm.
FACTS
“When a trial
court’s factual determination is attacked on the ground that there is no substantial
evidence to sustain it, the power of an appellate court begins and ends with the
determination as to whether, on the
entire record, there is substantial evidence, contradicted or
uncontradicted, which will support the determination . . . .” (Bowers
v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) “In making our determination, we do not
reweigh the evidence; the credibility of witnesses and the weight to be
accorded to the evidence are matters exclusively within the province of the
trier of fact.” (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
At the probation
violation hearing, with respect to the allegation that defendant failed to obey
all laws, the prosecution presented a minute order reflecting that on July 22,
2011, defendant entered a plea of guilty to driving under the influence and was
granted probation. With respect to the
failure to pay restitution, defendant’s probation officer testified that he met
with defendant three months after he was released from jail and confirmed
defendant’s obligation to pay restitution.
Defendant reported monthly, usually by mail, and never paid
restitution.
A district
attorney investigator recounted a recorded conversation between defendant and
his wife while defendant was in custody in jail. Defendant said he “wouldn’t be able to pay
because he couldn’t work, and that he wouldn’t be working when he got out.”
Real estate
investor Stan Lukowicz testified that defendant was a friend who he had known
for about 30 years and with whom he had had many business dealings. About three months after defendant was
released from jail, Jim Wilson, a contractor on one of Lukowicz’s projects,
asked whether he should hire defendant.
Lukowicz had no objection.
Lukowicz and Wilson planned to meet with one of defendant’s victims,
also a friend of Lukowicz’s, to ask about the amount of wage garnishment. Lukowicz was open to defendant working for
him if it meant defendant would pay restitution to the victim. But defendant never asked for a job or worked
for either Lukowicz or Wilson. Defendant
would have been hired as a laborer at about $20 per hour because defendant had
lost his contractor’s license. Lukowicz
characterized defendant as a good, skilled worker.
Defendant
testified. Since his release from jail in
August 2010, he signed up for and began receiving Social Security in the amount
of $l,l85 each month. Recently, he also
began receiving veteran’s partial disability benefits in the amount of $770
each month. His monthly expenses
included $500 for rent, which he paid to his daughter, $60 for a cell phone,
$67 for car insurance, $300 for gas, and $300 for food. He had recently moved out of his daughter’s
residence and was paying $1,000 per month in rent. He had approximately $150 left after paying
his expenses.
Defendant claimed
he had complied with all disclosure requirements and never hid any assets or
income. Since his release, he tried to
obtain a job supervising in construction but no one was hiring. Defendant acknowledged that Wilson
offered him a job as a laborer.
Defendant did not take the job because he is 63 years old. He was in school in Rancho Cordova
learning a new trade.
Defendant claimed
he would pay restitution if he had more discretionary income. He had been taking drug and alcohol classes
through the Veteran’s Administration (VA) at Mather and going to the Veteran’s
Center for posttraumatic stress disorder (PTSD) in Citrus Heights. He was arrested when he “self-medicated” with
alcohol and tried to kill himself when his PSTD “triggered.”
Although defendant
had places to stay rent free or for as little as $100 per month, he was in the
process of moving into a new apartment in Folsom with over $1,000 per month in
rent. Although he had a bank account at
Golden 1, he did not disclose that account and stated in financial disclosure
statements that he had no money in the bank but admitted his Social Security
check is deposited in that account. He
failed to report two $770 disability payments on his disclosure
statements. When he was arrested for
driving under the influence, he had $250 cash which he used for bail. Although the VA paid for his trade school
tuition, he paid $600 for an ordered DUI class he took and $300 to DMV to get
his license. He admitted that Wilson
would give him a job anytime he asked for it but he was going to school and
cannot work because he has “physical
problems” with his shoulders and rotator cuffs. Defendant worked in the jail in the kitchen
serving meals, washing cars, and folding laundry. He was receiving training to work on heating
and air conditioning. He did not apply
for any other work even though he had the ability to do so. He has not paid one cent of victim
restitution.
The defense
conceded that defendant violated probation due to his DUI conviction and the
court found that allegation of the petition true. By a preponderance of the evidence, the court
found defendant willfully failed to pay restitution to the victim, noting that
defendant had been out of custody for one year, had the ability to work, had
failed to seek employment, had friends who could provide a job and had not paid
one cent in victim restitution. Based on
the monthly amount defendant allegedly spent on gas, the court determined
defendant was driving about 1,700 miles a month even though he did not have a
job. The court found that defendant had
discretionary income “enough to pay something.”
The court concluded there was no evidence defendant ever intended to pay
restitution.
DISCUSSION
Penal Code section
1203.2, subdivision (a), provides in relevant part: “[P]robation shall not be revoked for failure
of a person to make restitution . . . as a condition of probation
unless the court determines that the defendant has willfully failed to pay and
has the ability to pay. Restitution
shall be consistent with a person’s ability to pay.”
A
support a probation violation to revoke probation. (People
v. Rodriguez (1990) 51 Cal.3d 437, 440-447; People v. Kelly (2007) 154 Cal.App.4th 961, 965.) A trial court is “granted great discretion in
determining whether to revoke probation.”
(Rodriguez,
appellate court will not disturb the trial court’s findings.” (People
v. Self (1991) 233 Cal.App.3d 414, 417.)
The evidence
supports the court’s conclusion that defendant willfully failed and had the
ability to pay restitution. Defendant
disclosed he had no money in the bank when in fact he had a bank account at
Golden 1 and he failed to report the $770 veteran’s disability payment. He claimed he paid $500 each month in rent to
his daughter but had places to stay rent free or for as little as $100 per
month and was in the process of moving to a new apartment with more than $1,000
per month in rent. He did not explain
his $300 monthly expenditure for gas.
Defendant had $250
cash for bail when he was arrested for DUI and paid about $600 for the ordered
DUI class. Defendant seemed to have cash
available for everything but restitution.
Defendant was a good, skilled worker and Wilson and Lukowicz would
employ him if he asked. Although he
claimed he could not work as a laborer because he had “physical problems,” he
had worked in the jail and had been receiving training to work on heating and
air conditioning. He had not applied for
any other work and had not paid one cent of victim restitution.
Defendant argues
that he was required to pay no less than $1,750 per month in victim restitution
and that the evidence showed he did not have the ability to make payments in
that amount.
title="">[2] As the court determined, defendant made no
attempt to increase his income and had not shown good faith by making even a single,
partial payment.
Sufficient
evidence supports the trial court’s finding.
DISPOSITION
The judgment is
affirmed.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
MURRAY , J.
name="_ftn1" title="">[1] As quoted in the investigator’s report,
defendant told his wife:
“No. Yeah, when I’m out of here, I’m out of here,
unless I violate my parole, my probation.
And the only way I can see doing that is if I have to pay her that
money.
“And I don’t
have a job. And if I don’t have a job,
then how am I going to pay her They
took my livelihood away.
“Well, no,
if I don’t have the money to pay her, then I can’t pay her. That’s all.
They can do what they want. I
mean, whatever. Like Maegan said, what they
will do with me is they’ll put that up on a shelf somewhere. We’ll see when I get out of here. I guess I’ll have to go by there and just
find out exactly what it is that I can do.
That’s the way it goes, you know.
Whatever.”
name="_ftn2" title="">[2] When probation was granted, the amount of
restitution and the manner of payment were determined by the court upon the
report of the probation officer or, with defendant’s consent, by the probation
officer subject to defendant’s right to a hearing to dispute the determination. (Pen. Code, § 1203.1k.) The record on appeal does not include the
probation report and does not reflect whether defendant disputed the amount of
restitution or the manner of payment when probation was granted.
