Trial Court: Santa Clara County Superior Court No.: CC948315 Trial Judge: The Honorable Rene Navarro (Santa Clara County Super. Ct. No. CC948315)
The opinion of the court was delivered by: Grover, J.*fn8
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Jon Holmberg, Jr. was convicted by plea of one count of concealing stolen property (Pen. Code, § 496, subd. (a))*fn2 and one count of using an altered, stolen or counterfeit access card (§§ 484g, subd. (a), 487). The court sentenced defendant to the middle term of two years concurrent on both counts. Finding defendant's custody credits to be 489 actual days and 244 conduct credits for a total of 733 days, the court deemed the sentence served. The court ordered defendant to pay various fines and fees, plus $18,182 in victim restitution.
On appeal, defendant argues the victim restitution award was improper because the victims' damages were due to the burglary of the victims' premises and were not proximately caused by his conduct. He also contends there was insufficient evidence to support $367 of the restitution award. Finally, he argues he is entitled to additional presentence conduct credits because the 2009 amendments to section 4019 apply retroactively to his case. We conclude that one $20 item on the restitution award is not supported by substantial evidence and strike that portion of the award. As so modified, we will affirm the judgment.
1. FACTS Stonecrest Financial Burglary
On May 26, 2008, there was a burglary at Stonecrest Financial (Stonecrest) in San Jose. Stonecrest is a "collection of companies" that includes a mortgage lender, a private placement alternative investment company, and property acquisition and property management companies. Several items were stolen during the burglary, including four computers, three monitors, three USB backup drives, two Ethernet cables, software, a card scanner, $175 in cash, two credit cards, and "miscellaneous items" valued at $227.11. Five Stonecrest computers were also damaged during the burglary.
Later that day, one of the stolen credit cards was used at a Taco Bell restaurant and at a 7-Eleven store. The following day, the same credit card was used at two Target stores in San Jose. Defendant and his girlfriend, Amanda Henderson, appear on surveillance videos of the transactions at Target. On May 29, 2008, the other stolen credit card was used to pay defendant's sister's cellular phone bill.
About one month after the burglary, someone logged on to the Internet using one of the stolen Stonecrest computers. Software in that computer caused it to log on to Stonecrest's network. Security personnel examined the computer's hard drive remotely and found Henderson's resume.
Chinese Medicine and Acupuncture Healing Center Burglary
The Chinese Medicine and Acupuncture Healing Center (CMAHC) in Cupertino was burglarized over the Memorial Day weekend in 2008. The center's computer and other items were stolen.
Precision Auto Care Burglary
Precision Auto Care (PAC) in Santa Clara was burglarized on an unspecified date. Ali Bayatoni, the manager of PAC, reported that two Dell computer work stations and miscellaneous tools were stolen.
On July 17, 2008, the San Jose Police Department executed a search warrant at defendant's home and found hard drives, a card scanner, and software that were stolen from Stonecrest.*fn3 They also found hard drives from computers that were stolen from PAC and CMAHC. Henderson admitted that she and defendant used the credit cards stolen in the Stonecrest burglary at Taco Bell, 7-Eleven, and Target. She told police that on the same day they used the credit cards, several computers and monitors showed up at the house she shared with defendant. Henderson told police that defendant brought the computers home, replaced the hard drives or wiped the hard drives clean, and sold them on Craigslist.
The police interviewed defendant on July 24, 2008. Defendant admitted using the stolen credit card at Target and possessing the stolen computers. He said a friend brought three or four computers to his house on Memorial Day weekend. Both defendant and Henderson denied participating in the burglaries and told police that Mark Collins " 'probably' " committed the burglaries.
2. Procedural History Charges, Plea, and Sentencing
In July 2009, the prosecution charged defendant with one count of concealing stolen property (§ 496, subd. (a)) on or about July 18, 2008 and one count of using an altered, stolen or counterfeit access card (§§ 484g, subd. (a), 487) between May 26 and May 27, 2008. Defendant was arrested for those offenses on August 31, 2009. The record suggests he was in jail for another offense at that time.
In October 2009, defendant pleaded no contest to both counts in this case in exchange for a two-year stipulated sentence. The plea agreement provided that, with the exception of nine days, credits were to accrue as of July 24, 2008.
Prior to sentencing, the probation department prepared a "Waived Referral" memorandum for the court, in which the probation officer addressed contacts with the victims. CMAHC did not respond to the probation officer's inquiries. Bayatoni, the manager of PAC, told the probation officer that his business had been burglarized and that numerous items were stolen, including three computers, one laptop computer, shop equipment, and tools. Bayatoni estimated his losses "in excess of $9,000." The probation officer reported that a hard drive from PAC was found in defendant's possession. According to Joan Verduzco, an employee of Stonecrest, "defendant stole parts from all of their computers, including computer disks and other equipment." She reported that "defendant 'basically shut down our business for about one week' while computer equipment needed to be replaced and employees needed to work overtime and on weekends to assess the damage, recover information, and bring work production up to date."
In November 2009, Jon Freeman, the owner of Stonecrest, sent the probation department a statement of loss form estimating Stonecrest's losses at $27,269.12. Attached to the form was an itemized list of the property that was stolen or damaged in the burglary. Freeman's list identified each item by manufacturer name and model number, estimated the item's value and replacement cost, and stated whether the item had been damaged or stolen. Stonecrest's claim included $5,000 for "damaged" computers, $3,795 for IT labor, and $10,000 for loss of business and productivity for one week.
At the sentencing hearing in November 2009, defense counsel objected to the probation department's report on restitution and requested a restitution hearing. The court sentenced defendant to two years in prison and, based on the number of custody credits, deemed the sentence served. The court set the matter for further hearing on victim restitution.
The prosecutor filed papers with the court in which he stated that restitution in a possession of stolen property (§ 496) case must be related to the withholding or sale of the stolen property, rather than the burglary or initial theft. He argued there was evidence that defendant possessed several computers on the same day they were stolen from Stonecrest and that the court should order restitution for the missing computers and lost productivity because Stonecrest would not have experienced those losses if defendant had returned the computers when he first acquired them and had not withheld the property. The prosecutor urged the court to award Stonecrest $18,072 of the amount claimed and to use its "best judgment" regarding the remaining items ($3,795 for the IT labor; $5,000 for damage to computers that were not stolen; $175 in cash; and $227.11 for miscellaneous), as well as the $9,000 claimed by PAC.
The evidence included a facsimile transmission from Verduzco of Stonecrest, in which she stated, "Due to the theft of our computers[,] all of our daily operations were reduced to the most basic levels. Many employees brought their laptops[,] which enabled some work to get done[.] [B]ut all company information stored on our servers was not accessible. Replacement computers took about a week to be delivered and several more days for our IT ...