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The People v. Kevin Jones

September 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEVIN JONES, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF095752A)

The opinion of the court was delivered by: Mauro , J.

P. v. Jones 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The trial court ordered defendant Kevin Jones to pay victim restitution for burning a newspaper rack. Defendant contends this was error, because although his conduct resulted in revocation of his probation and execution of a two-year suspended prison term, it did not result in a separate criminal conviction.

Consistent with the California Constitution and the Penal Code, in the absence of a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), a trial court sentencing a defendant to prison may not order victim restitution for economic harm caused by conduct for which defendant was not convicted. We will modify the judgment to strike the victim restitution order and affirm the judgment as modified.

BACKGROUND

Stockton police officers contacted defendant on April 15, 2005. In a consensual search, the police determined that defendant possessed heroin, cocaine and a broken glass pipe. Defendant pleaded guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and failure to appear (Pen. Code, § 1320, subd. (b)),*fn1 and the trial court granted five years' probation.

Defendant subsequently admitted two probation violations, and on October 16, 2006, the trial court sentenced him to two years in state prison, stayed pending successful completion of a drug treatment program. Defendant's probation was reinstated when he admitted another probation violation on January 29, 2009.

On August 27, 2009, a fire broke out at a Stockton Record newspaper rack outside a Stockton store. Defendant was detained by a police officer when he was seen leaving the location on a bicycle. The officer arrested defendant after finding he possessed two cigarette lighters and a piece of paper with the newspaper's name.

The People charged defendant with arson (§ 451, subd. (d)) and subsequently alleged that defendant violated his probation by committing the arson.

Following a combined preliminary hearing and probation violation hearing, the trial court found probable cause that defendant committed arson and that he had violated his probation. The trial court executed the suspended two-year prison term and dismissed the arson charge on the People's motion. Because defendant had accumulated almost four years' presentence custody, he was ordered released on parole.

At a contested restitution hearing, the People presented evidence that the replacement cost of the newspaper rack was $1,568.75. The trial court did not allow testimony on the rack's age or condition. Defendant objected to restitution in general and to the amount of restitution ...


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