P. v. Blondet

















Filed 1/23/13 P. v. Blondet CA4/2

















NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. BRIAN CRAIG BLONDET, Defendant and Appellant.

E054341 (Super.Ct.No. FBA1100208) OPINION

APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
Margaret A. Powers, Judge.
Affirmed.

Neil
Auwarter, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.

Pursuant
to a plea agreement, defendant and appellant Brian Craig Blondet pled guilty to
receiving
stolen property. (Pen. Code, § 496,
subd. (a).)href="#_ftn1" name="_ftnref1"
title="">^[1] In return, two prior allegations were
stricken (§ 667.5, subd. (b)), and defendant was sentenced to two years in
state prison.

Following
a subsequent restitution hearing, defendant was ordered to pay $14,032.63 in
restitution. Defendant’s sole contention
on appeal is that the trial court abused its discretion in ordering restitution
for economic losses that were not caused by defendant’s convicted href="http://www.fearnotlaw.com/">criminal conduct and, therefore, the
matter must be remanded for a new restitution hearing. We reject this contention and affirm the
judgment.

I

FACTUAL
AND PROCEDURAL BACKGROUNDhref="#_ftn2"
name="_ftnref2" title="">^[2]

A. Factual
Background

On
April 2, 2011, San
Bernardino County Sheriff Deputies Jayne and Halterman were dispatched to
Fisher Cattle Company near Barstow
in regard to a grand theft, where they met with ranch foreman Harold
Horner. Mr. Horner reported that between
March 19 and April 2, 2011,
unknown suspects cut a barbed wire fence and drove onto the property with a
truck and trailer. Mr. Horner also
noticed that another fence, located on the other side of the property, had been
damaged, and that numerous items were missing from the property. The suspects stole: (1) approximately 70 twenty-foot long pieces
of irrigation pipe; (2) 15 five-inch pieces of well casing pipe (one with a
gate valve) that were 15 feet long; (3) six feed troughs; (4) two large homemade
steel gates; (5) 40 three-inch pieces of irrigation pipe; (6) one 250 gallon
diesel tank; and (7) numerous turn buckles, brass fittings, and clamps. Mr. Horner further discovered that the
radiator to the generator was cut, along with the wiring that went from the
generator to the well pump, which pumps water to troughs for the cattle. He estimated the loss at approximately
$10,000.

Mr.
Horner further told the deputies that a witness had seen a red truck and
trailer the previous day, on April 1,
2011, traveling at a high rate of speed with items falling off the
trailer. Some of the turn buckles and
clamps had fallen off, as well as a couple of pieces of pipe. The witness confirmed this information to
Deputy Jayne. Additionally, the witness
said that the trailer had orange straps, and that he had to pull over to the
side of the road to allow the speeding truck to pass. The witness also stated that he had collected
the items that had fallen from the trailer and returned them to Mr. Horner.

A
second witness told Deputy Halterman that on April 1, 2011, he saw a red Ranger
truck pulling a trailer with two white males in their late 20’s to early 30’s
inside the truck’s cab. The witness saw
items in the back of the truck, which were sticking up over the bed of the
truck. Additionally, the witness saw a
red ‘“jack box’” and at least six irrigation pipes in the trailer.

A
few days later, on April 4, 2011, the deputies found cut irrigation pipes,
several saws with metal cutting blades, and a large trailer with orange straps
at defendant’s residence. Mr. Horner met
the deputies at defendant’s residence and identified the pipes, the diesel fuel
tank, and the copper tubing system as the stolen items. After identifying the property, Mr. Horner
retrieved the stolen items and placed them in his truck.

Defendant
was subsequently arrested. When he was
informed that the charges were for stolen property, defendant stated, “‘I don’t
know what would be stolen. Irrigation
pipes? Is that what you’re worried
about?’” Defendant then said his friend
brought them to his residence, but when asked to elaborate, defendant said, “‘I
didn’t get, uh, I’m not gonna get anyone else involved in this. Nevermind.’”
Defendant also asserted that he had no recollection of where the diesel
tank came from, that he was “‘set up,’” and that he wanted to invoke his
right to “‘remain silent.’”

B. Procedural
Background

Defendant
pled guilty to one count of receiving stolen property (§ 496, subd. (a)) and
was sentenced to two years in state
prison. Pursuant to section 1202.46,
the trial court reserved the issue of victim restitution following a hearing.

At
the restitution hearing, the People argued that defendant should be held
accountable for all of the items for which restitution was sought. The restitution request did not include all
the stolen items, but it did include items and labor necessary to repair the
cattle ranch’s irrigation system. The
sheriff’s report indicated that all of the stolen property was taken from the
same location at the same time. The
report also showed that an unidentified vehicle and male, who matched
defendant’s description, were seen leaving the scene of the theft.

Defense
counsel made several objections to the restitution request, including inconsistencies
in the estimated value and amount of property stolen that was in the initial
report compared to the restitution request.
Defense counsel also objected to the restitution request on the ground
that it included all losses from the burglary, even though defendant was only
charged with and convicted of receiving stolen property. The trial court thereafter recessed to allow
counsel to further research the legal issue of whether defendant was liable for
all the loss.

When
the hearing resumed, over defense counsel’s objections, the prosecutor
presented evidence that on the day after the burglary, there were “drag marks
where the trailer . . . had been dragged . . . along the road, and the drag
marks were visible in the road.” The
prosecutor also stated that “pieces of [sucker pipe] could be seen [falling]
off the trailer [on] the same route between the . . . ranch and the defendant’s
residence.” The prosecutor further
pointed out that pieces of the stolen gates, which had been cut, were located
at local scrap yards; that additional pieces of the gates were found in the
back of the trailer on defendant’s property; and that metal cuttings and
several saws with metal cutting blades were found near the trailer and inside
defendant’s residence.

Following
argument, the trial court ordered defendant to pay the full amount of the
restitution request. The court
explained: “[I]n this case, . . . we’re
looking at the responsibility for the loss based on receiving[. W]e call it receiving stolen property, but it
does cover more than receiving. It’s
possession, concealing, [and] could even include selling it to someone else. .
. . [B]y concealing it from the owner
and not either turning it into the police or to the owner, . . . it has caused
ongoing issues with having to deal with not having the irrigation system
because this is apparently an operating farm or ranch of some sort.” The court further noted that a “restitution
order does not have to be limited to the exact amount of loss, which the
defendant is actually found culpable[.
A]s long as it’s reasonably related to the damage and it’s not arbitrary
or capricious, then they usually stand.”
At the conclusion of the hearing, the court stated, “by providing a
place for these items to be concealed and possibly . . . taken
apart so that [the parts] cannot be identified, . . . [defendant]
contributed to the loss, and that’s the principle the court issues for
making the order.”

II

DISCUSSION

Defendant
argues that the restitution order must be vacated and the matter remanded for a
new restitution hearing because the trial court erred in failing to limit the
economic losses that were caused by his conduct for which he was
convicted. Specifically, he claims
because he was not charged with burglary, but rather only with receiving stolen
property, restitution should have been limited to the items found in his
possession.

The
trial court is required to award restitution to a victim who has suffered
economic loss as a result of a defendant’s conduct. (§ 1202.4, subd. (f); People v. Giordano (2007) 42 Cal.4th 644, 652 (Giordano).) The restitution
order shall be “sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant’s criminal
conduct, including, but not limited to . . . the
following: [¶] (A)
Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall
be the replacement cost of like property, or the actual cost of repairing the
property when repair is possible.” (§
1202.4, subd. (f)(3); see also Giordano,
at p. 654.) The restitution amount
should be “based on the amount of loss claimed by the victim or victims or any
other showing to the court.” (§ 1202.4,
subd. (f).)

On
appeal, we review the trial court’s restitution order for abuse of
discretion. (Giordano, supra, 42
Cal.4th at p. 663.) We draw all
reasonable inferences in favor of the court’s order and affirm if there is
substantial evidence to support it. (>Id. at p. 666.) The statute does not require “any particular
kind of proof” and “[n]o abuse of discretion will be found where there is a
rational and factual basis for the amount of restitution ordered.” (People
v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 [Fourth Dist., Div. Two].)

As
defendant points out, for a defendant sentenced to prison, “[c]ourts have
interpreted section 1202.4 as limiting restitution awards to those losses
arising out of the criminal activity that formed the basis of the conviction.” (People
v. Woods (2008) 161 Cal.App.4th 1045, 1049; see also People v. Lai (2006) 138 Cal.App.4th 1227, 1247 [construing
“criminal conduct” language in § 1202.4, subd. (f)].) California has “adopted the ‘substantial
factor’ test in analyzing proximate cause.”
(People v. Holmberg (2011) 195
Cal.App.4th 1310, 1321 (Holmberg);> see also People v. Jones (2010) 187 Cal.App.4th 418, 425 [there is “no
reason why the various principles involved in determining proximate causation .
. . should not also apply in awarding victim restitution”].) This standard is “‘“relatively broad”’” and
requires “‘“only that the contribution of the individual cause be more than
negligible or theoretical.”’” (>Holmberg, at p. 1321.) A force that plays only a theoretical or
infinitesimal part of causing an injury or loss is not a substantial factor,
but a minor force that causes harm or loss is a substantial factor. (Id.
at p. 1322.)

In
Holmberg, the defendant pled to
possession of stolen property and was ordered to pay restitution to the owners
of the property. The defendant argued
that the restitution award was improper because the victim’s losses were caused
by the burglary and theft of the property and not by his mere possession. (Holmberg,
supra, 195 Cal.App.4th at
pp. 1313, 1320, 1323.) The reviewing
court rejected this argument, noting “there can be more than one cause of
injury and that multiple causes can combine to cause harm.” (Id. at
p. 1322.) The court found it
“significant” that the defendant obtained the property the day it was stolen. (Ibid.) Because he did not turn it over to the
police, the “[d]efendant’s conduct played far more than a negligible or
theoretical part in bringing about the victims’ injuries and was a substantial
factor in causing the harm they suffered.”
(Ibid.)

Likewise,
defendant’s conduct here was a substantial factor in causing harm to the cattle
ranch. Although defendant denied
burglarizing the ranch, the evidence shows that defendant’s conduct was a
“concurrent cause” of the total loss due to the burglary, and “a substantial
factor in depriving” the ranch of a working irrigation system. (Holmberg,
supra, 195 Cal.App.4th at p.
1322.) The evidence showed that when the
deputies searched defendant’s residence two to three days after the burglary,
they discovered items that Mr. Horner had reported stolen and were part of the
cattle ranch’s irrigation system. All of
the stolen items were taken from the same site.
In addition, a trailer matching the one found at defendant’s residence
was seen leaving the area of the cattle ranch, at a high rate of speed, with
various items falling off the trailer, on the same day (or the day before) the
items were discovered stolen. Further,
restitution was requested for the items found at defendant’s residence. The remaining restitution was ordered to
repair the damaged irrigation system.
Moreover, there was evidence showing that defendant was concealing the
property, or cutting it up and selling it, thereby causing ongoing issues with
the cattle ranch in not having an irrigation system. As the court in Holmberg found: “For these
reasons, we conclude that defendant’s concealing of the stolen property was a
concurrent cause in depriving the victims of the use of their property. . .
. Defendant’s conduct played far more
than a negligible or theoretical part in bringing about the victims’ injuries
and was a substantial factor in causing the harm they suffered.” (Holmberg,
at p. 1322.)


Defendant relies upon >People v. Scroggins (1987) 191
Cal.App.3d 502 (Scroggins), but >Scroggins is distinguishable. In Scroggins,
burglaries occurred in four apartment units of the same complex. The defendant was charged and convicted of
receiving some stolen property, which was found in his sister’s apartment,
where he was residing at the time of the burglaries. Those items of property were recovered by the
police and returned to the rightful owners.
The defendant was never charged with or found to be criminally responsible
for the burglaries. Yet, the trial court
ordered him to pay restitution for the property still not recovered from the
burglaries. The appellate court found
that the trial court erred in ordering the defendant to pay restitution to
burglary victims whose losses were not connected to the defendant’s crime. The appellate court noted that the trial
court “did not conclude . . . that [the defendant] was responsible for [the]
other losses that it ordered paid.” (>Id. at pp. 504-506.)

Unlike
Scroggins, in this case, there was
ample evidence of a causal connection between the losses incurred by the cattle
ranch and defendant’s conduct. In >Scroggins, items were taken from
residents living in four separate apartment units, and there was no evidence
connecting those losses to each other or to the defendant’s crime. (Scroggins,
supra, 191 Cal.App.3d at p.
504.) In contrast, the property in the
instant case was taken from only one site, the cattle ranch, and found at
defendant’s residence several days after the burglary. Further, a trailer seen transporting the
stolen items was also discovered at defendant’s residence. Moreover, the trial court here concluded that
defendant contributed to the total amount of losses “by providing a place for
these items to be concealed and possibly . . . taken apart so that they cannot
be identified.” The stolen items found
at defendant’s residence were clearly related to unrecovered items that had
been stolen from the cattle ranch during the same burglary.

Thus,
the trial court properly concluded that the record supported a finding that
defendant was responsible for the other losses, and that there was a rational
and factual basis for the amount of restitution ordered.
clear=all >

III

DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS





RAMIREZ

P.
J.



We concur:







RICHLI

J.







KING

J.