IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
July 1, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BRETTFORD TYLER SPARKS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09-0094)
The opinion of the court was delivered by: Nicholson, Acting P. J.
P. v. Sparks
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A court may base a victim restitution order on unfiled charges if the defendant waives his right under People v. Harvey (1979) 25 Cal.3d 754, 758, not to suffer adverse consequences based on the facts underlying an uncharged crime or a dismissed count (a Harvey waiver). (People v. Goulart (1990) 224 Cal.App.3d 71, 80-81.) Had a Harvey waiver been obtained in this matter, we would not be required to reverse a victim restitution order that attempted to make the victim whole. However, the prosecutor did not seek a Harvey waiver, and defense counsel did not object when the trial court ordered restitution based on uncharged conduct. Faced with both an unauthorized sentence and the allegation by defendant's appellate counsel of ineffective assistance by defendant's trial counsel, we must reverse the trial court's order. In the absence of a Harvey waiver and where the defendant is sentenced to state prison, state law limits victim restitution to losses incurred due to the crimes for which defendant was convicted.
Defendant Brettford Tyler Sparks pleaded no contest to two counts of burglary (Pen. Code, § 459),*fn1 and seven counts of possessing a completed document with the intent to defraud. (§ 475, subd. (c).) He also admitted one prior strike for purposes of the "Three Strikes" law. (§ 667, subd. (c).) There was no Harvey waiver.
According to defendant's probation report, a police investigation determined defendant had written a total of 67 insufficient funds checks to several Nugget Markets from December 8, 2008, to January 6, 2009, the day of his arrest. The amount of those checks totaled $3,888.19. Each bad check generated a $25 bank fee, resulting in a total loss of $5,563.19.
At sentencing, the trial court stated there was victim restitution to Nugget Market in the amount of $5,563.19. It asked if the defense agreed to that amount or whether the amount of restitution had yet to be determined. Defense counsel turned to his client and asked, "[Defendant], do you agree to that amount?"
Defendant asked, "That's with their fees and 3,000?"
The court responded: "Three thousand in change was the actual losses from the checks, but you add their $25 per check fee on it and it comes to $5,563.19. [¶] The question is, do you have any evidence or argument you would like to present to contest that requested amount?"
Defendant said he did not. The court then set restitution to Nugget Market at $5,563.19. It also sentenced defendant to an aggregate state prison term of 14 years eight months, calculated as follows: the midterm of two years on the first burglary count, plus consecutive eight-month terms on the second burglary count and the seven insufficient funds checks counts, all doubled for the prior strike.
After obtaining a certificate of probable cause, defendant filed this appeal. He claims the trial court erred in ordering restitution beyond the seven bad checks for which he was convicted.
Initially, the Attorney General asserts defendant waived his claim by not objecting to the restitution order in the trial court. We disagree. An objection may be raised for the first time on appeal where it concerns an "'unauthorized'" sentence, i.e., one that "could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 351-354.) Defendant claims the court imposed an unlawful sentence. He may make this claim for the first time on appeal.
We agree with defendant that the trial court imposed an unlawful sentence. The court erred by imposing victim restitution for crimes for which defendant was not charged or convicted. When a defendant is sentenced to state prison, courts lack jurisdiction to impose victim restitution for criminal conduct for which the defendant was not charged or convicted.
The California Constitution grants crime victims the right to receive restitution for losses resulting from the crime of which defendant was convicted. (Cal. Const., art. I, § 28, subd. (b)(13).)*fn2 Section 1202.4 implements that right by requiring a defendant "to pay restitution for losses resulting from the criminal conduct supporting the crimes of which the defendant was convicted." (People v. Lai (2006) 138 Cal.App.4th 1227, 1247 (Lai).)
Unlike when restitution is imposed as a condition of probation, section 1202.4 limits victim restitution when the defendant is sentenced to state prison to losses caused by the criminal conduct for which the defendant was convicted. (Lai, supra, 138 Cal.App.4th at p. 1246; People v. Percelle (2005) 126 Cal.App.4th 164, 179-180.)
The Lai court explained this limitation on the court's authority results from the language of section 1202.4: "Section 1202.4 implements the constitutional right to restitution. As stated in section 1202.4, subdivision (a)(1), the Legislature intended to provide '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.' (§ 1202.4, subd. (a)(1), italics added.) Hence, the reimbursable loss identified by section 1202.4, subdivision (a)(1) is the loss resulting from the crime of which the defendant was convicted.
"Subdivision (a)(3)(B) of section 1202.4 requires the court to order 'the defendant' -- meaning the defendant described in subdivision (a)(1), who was 'convicted of that crime' resulting in the loss -- to pay '[r]estitution to the victim or victims, if any, in accordance with subdivision (f).' Subdivision (f) of section 1202.4 provides that 'in every case in which a victim has suffered economic loss as a result of the defendant's criminal conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.' (Italics added.) Construed in light of subdivision (a)(1) and (3)(B), the term 'criminal conduct' as used in subdivision (f) means the criminal conduct for which the defendant has been convicted." (Lai, supra, 138 Cal.App.4th at p. 1247, original italics.)
The Lai court concluded its reading of section 1202.4 did not defeat the constitutional right to victim restitution: "Respondent contends that any reading of section 1202.4 to preclude restitution for crimes of which the defendant was not convicted would defeat the purpose of California Constitution article I, section 28, subdivision (b), and the compensatory, rehabilitative and penal objectives of restitution. However, such a reading is compelled by the language of section 1202.4, and is consistent with the language of article I, section 28, subdivision (b). Further, the issue here is not whether the defendant must pay restitution. The issue is only whether, in addition to paying restitution for losses caused by the conduct for which he was convicted, a defendant sentenced to state prison must also pay restitution for losses caused by conduct for which he was not convicted. Precluding restitution for such nonadjudicated conduct does not undermine the purpose of article I, section 28, subdivision (b), or the policies supporting restitution. It simply implements the plain meaning of those provisions in nonprobation cases, unexpanded by the greater scope of restitution available through a probationary grant." (Lai, supra, 138 Cal.App.4th at p. 1249, original italics.)
The trial court imposed restitution based on defendant's passing 67 insufficient funds checks, but defendant was convicted of passing only seven bad checks. Defendant also did not enter into a Harvey waiver. The trial court exceeded its authority under Harvey and section 1202.4, and the matter must be remanded for the court to reconsider its order of victim restitution.*fn3
The trial court's order imposing victim restitution is reversed, and the matter is remanded to the trial court to enter a new victim restitution amount limited to the amount of seven insufficient funds checks the defendant passed and a corresponding bank fee of $25 for each of the seven checks.
We concur: BUTZ , J. MAURO , J.