IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Trinity)
October 19, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JEAN PAUL BARONE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F112A)
The opinion of the court was delivered by: Blease , J.
P. v. Barone
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In resolution of the present matter (and four other cases that are not part of this appeal), defendant Jean Paul Barone entered a plea of no contest to burglary while on bail. The trial court sentenced him to state prison. After a subsequent hearing, the court ordered restitution to the victim of $22,600 (rounded) and awarded conduct credit of 158 days for 159 days of presentence custody attributable to this case. Defendant did not seek a certificate of probable cause in connection with his notice of appeal.
Defendant argues there is an insufficient factual basis for finding any rational nexus between his offense and the victim's losses. We agree, and will modify the judgment to strike the restitution order. We also will reduce his conduct credit, because burglary is a "serious" felony that disqualifies him from the "one-for-one" formula in effect at the time of his
January 2011 sentencing. As thus modified, we will affirm the judgment.
The stipulated factual basis for the plea was the sheriff's report. This does not itself appear in the appellate record, but is summarized in the probation report.
On July 7, 2010, a detective "received information" that a burglary had taken place at a compound of several structures; the burglars had already taken a number of items and intended to return to remove a safe. Several deputies went to the property and found that the residence, a trailer, a detached garage, and several storage structures had all been opened and ransacked. Dust patterns indicated the removal of some items, and some were laid out in the bedrooms as if someone intended to return for them. A safe was on a dolly. The deputies kept watch from 11 pm until the following morning without seeing anyone.
On 2:00 pm on the following afternoon (July 8), detectives returned to take photographs and obtain fingerprints. Deciding another night of surveillance was in order, deputies returned at 8:30 pm to discover someone had again broken into the main house and had left the back door unsecured.
Later that evening, the deputies saw a white truck drive past the property onto a dirt road to its east. They heard the engine stop near the top of the ridge, and doors close. About 15 minutes later, they saw a flashlight scanning the property near the main house. The flashlight turned off, and about 15 minutes later, they heard the sounds of doors closing and a vehicle coming back down the dirt road.
They could see three people walking through the woods from the dirt road, navigating by flashlight. They approached the rear door, and one of them entered. She came back out without taking anything. The deputies arrested the group, which was defendant, his wife, and their friend, Mathew Ray.
The information charged the three with burglary on July 8, burglary on July 6, and other offenses and enhancements. In the plea agreement, defendant agreed to plead no contest to the July 8 burglary and the on-bail enhancement in exchange for dismissal of the remainder of the information. He did not execute a waiver allowing the court to consider facts on which the dismissed counts were based for purposes of sentencing and restitution. (People v. Harvey (1979) 25 Cal.3d 754, 758.)
The probation officer interviewed defendant. The latter claimed Ray had told him there was a safe in a house that had belonged to deceased people, which would escheat to the state and therefore they should investigate. His wife also urged him at least to take a look. He did not have anything to do with any earlier burglary.
The victim gave the probation officer a lengthy list of items he claimed had been taken from the property. He also listed damages the burglars caused to the property.
At the restitution hearing, the probation officer testified that the owner, who lived in San Jose, used the property as a vacation home and also stored equipment used in his construction business. The victim could not determine if anything had been taken on July 8 as opposed to earlier. None of the three co-defendants had any of the victim's belongings in their possession at the time of their arrest. As far as anyone could tell, defendant was involved only in the burglary on the night of July 8.
Defendant's co-defendant Ray testified that he had been involved only in the July 8 burglary. He had not taken any of the victim's property.
Defense counsel argued it was speculation that defendant was at the property any other time, and defendant had insisted he never entered the house. Based on the fact that the offense was alleged "on or about" July 8, the trial court concluded defendant's plea of no contest could include anything taken in the days preceding July 8, so it awarded restitution in the amount that the victim claimed for his belongings (denying a claim for lost income) as a joint and several obligation of the three co-defendants.
A trial court has virtually unlimited discretion to take information of any kind into account when awarding restitution, which includes facts contained in a probation report. We review an award of restitution for an abuse of discretion, but there must be substantial evidence to support a finding that a claimed loss was a result of a defendant's criminal conduct. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045-1046, 1048; People v. Baker (2005) 126 Cal.App.4th 463, 469; People v. Baumann (1985) 176 Cal.App.3d 67, 81.)
Defendant argues there is an absence of any factual nexus between the victim's loss and the burglary that he admitted committing. At the time of their arrests, none of the three co-defendants were in the process of taking any of the victim's property, nor does the record demonstrate that any of the stolen property was found in their possession. Nothing links any of the defendants expressly to any earlier entry, other than their apparent awareness that the rear entrance was unsecured (but the summary of the sheriff's report did not state that the deputies noticed additional items were missing when they had returned earlier in the evening on July 8 to find the back door unsecured).
The People attempt to argue the previous burglary embraced in the dismissed count is transactionally related to the July 8 count and therefore the earlier losses can be the subject of restitution. (Harvey, supra, 25 Cal.3d at p. 758.) This begs the question of identifying any evidence that connects defendant with any other burglary of the victim such that the dismissed count could be transactionally related.
The People also assert the trial court's rationale that the earlier burglaries were on or about the date of the crime to which defendant entered his plea. However, the fact that defendant might have been convicted for any act of burglary within the limitations period preceding the date alleged in the count*fn1 does not convert his plea of no contest from an admission of a commission of a burglary on that date to an admission of a connection with any earlier burglary not established in the factual basis for the plea.
Finally, the People contend it is a rational inference that someone apparently planned on returning and taking the safe and other items laid out in the bedroom before July 8. Therefore, it is rational to infer from the presence of the three co-defendants on July 8 and their apparent awareness that they could enter through the unsecured rear door that they had been there before July 8.
Although inferences may constitute substantial evidence in support of a finding, they must be the probable outcome of logic applied to direct evidence, not speculation or conjecture. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1205; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633; People v. Berti (1960) 178 Cal.App.2d 872, 876 [Berti].) Whether an inference rationally flows from the evidence is a question of law (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 44-45; Berti, supra, 178 Cal.App.2d at p. 876), on which we therefore exercise de novo review.
The People's "logic" would apply equally to any person happening upon the scene at any point after July 7. Therefore, it does not make defendant's connection to the other burglary any more likely than anyone else's. Word of the burglary had already spread in the demimonde of the small rural community on July 7 to someone tipping off the detectives, which conceivably could have piqued the interest of other scavengers. We thus conclude that the connection between defendant and the victim's losses was not established with substantial evidence, and must modify the judgment accordingly.
In calculating conduct credits for presentence custody, the trial court followed the recommendation of the probation report. Neither the court nor the probation report took into account the status of defendant's burglary conviction as a serious felony. (Pen. Code, § 1192.7, subd. (c)(18).) This disqualified him from the "two-for-two" formula enacted in January 2010 (which the probation report apparently followed) and the "one-for-one" formula enacted in September 2010. (See Pen. Code, § 4019, former subds. (b)(2), (c)(2) & (f) [Stats. 2009, 3d Ex.Sess., ch. 28, § 50]; see also § 2933, subd. (e)(3), § 4019 [Stats. 2010, ch. 426, § 5 (same provisions, eff. date Sept. 28, 2010)].) As a result, at all times pertinent to his offense and sentencing, defendant was entitled only to the "two-for-four" formula that existed before January 2010 and after September 2010. Having served 159 days of actual presentence custody, defendant accrued 78 days of conduct credit for a total of 237 days, not 317. We will modify the judgment accordingly.
The judgment is modified to strike the restitution order and award 78 days of conduct credit. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of decision and forward it to the Department of Corrections and Rehabilitation.
We concur: RAYE , P. J. HOCH , J.