IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
September 28, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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 sought. The trial court ordered defendant to pay $1,568.75 in restitution.
Defendant asserts that the trial court was without authority to impose restitution for the arson because the economic harm was caused by conduct for which defendant was not convicted. He also claims the trial court erred in not allowing him to present evidence regarding the value of the newspaper rack at the time it was burned. Because we agree with defendant's first contention, we need not address his second one.
"We review the trial court's restitution order for abuse of discretion. [Citation.] A restitution order that is based on a demonstrable error of law constitutes an abuse of the trial court's discretion. [Citation.]" (People v. Woods (2008) 161 Cal.App.4th 1045, 1048-1049.)
Article I, section 28, subdivision (b)(13)(A) of the California Constitution states it "is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." Implementing this right of restitution, Penal Code section 1202.4, subdivision (a)(1) provides 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."
Courts consistently limit restitution to losses stemming from the acts for which a defendant was convicted. Restitution "is not authorized where the defendant's only relationship to the victim's loss is by way of a crime of which the defendant was acquitted." (People v. Percelle (2005) 126 Cal.App.4th 164, 180.) A court cannot order restitution for acts which happened before the charged offenses. (People v. Lai (2006) 138 Cal.App.4th 1227, 1246.) Likewise, a defendant convicted of acting as an accessory after the fact to a murder is not required to pay restitution to the family of the murder victim. (People v. Woods, supra, 161 Cal.App.4th at p. 1047; see also People v. Rubics (2006) 136 Cal.App.4th 452, 460 ["restitution must be for economic damages resulting from the crime of which (the defendant is) convicted, not merely those 'reasonably related' to the crime"].)
The Attorney General argues that Woods, Purcell, and Lai are inapposite because they do not involve conduct which led to the defendant's probation being terminated. Since restitution helps deter future criminality and rehabilitate the criminal (People v. Crow (1993) 6 Cal.4th 952, 957), the Attorney General argues "th[e]se aims would be thwarted if the trial court could not impose restitution for losses stemming from criminal activity that constitutes a violation of probation" when the defendant is sentenced to prison but not convicted of the offense.
We are bound by the language of the Constitution and the applicable statute. The California Constitution and section 1202.4 limit victim restitution to economic losses caused by conduct for which a defendant was convicted. Certainly, defendant's act of burning the newspaper rack was a violation of the terms of his probation and it had criminal consequences resulting in revocation of probation and execution of the two-year suspended prison term. But a probation violation is not a criminal conviction. The arson charge was dismissed and defendant was not convicted of arson. In the absence of a Harvey waiver, the restitution order cannot stand.
Although the abstract of judgment makes reference to a Harvey waiver, that reference is incorrect. Nothing else in the record indicates that defendant made a Harvey waiver. We will order a correction to the abstract of judgment.
The judgment is modified to strike the order requiring defendant to pay $1,568.75 in victim restitution. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment deleting any reference to a Harvey waiver and any reference to defendant having to pay victim restitution, and to forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. ROBIE , J.