(Super. Ct. Nos. CM031221, CM032412, CM032599)
The opinion of the court was delivered by: Hull , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 sentencing defendant Jason Jess Garcia to state prison for offenses in three separate cases (CM031221, CM032412, CM032599), the trial court ordered defendant to pay restitution in the amount of $15,600 to cover a victim's losses from a burglary defendant had not been charged with. Defendant appeals, contending the restitution order must be stricken as unauthorized. In the alternative, he claims insufficient evidence supports the amount of the order above $650, the value of a returned nonfunctional laptop which was found in the motel room of defendant and co-defendant Misty Gilbert. Finally, he claims there was insufficient evidence that his conduct was a substantial factor in rendering the $650 laptop nonfunctional.
The People respond that the restitution order to the particular victim was authorized in part because defendant entered a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 (Harvey) with respect to the dismissed counts, one of which was receiving stolen property, to wit, credit cards and a laptop, the victim's laptop, which was found in defendant and co-defendant's possession more than 15 months after the burglary of the victim's home. The People concede that although the evidence supports a finding that the victim's total losses from the burglary amounted to $15,600, there is no evidence linking defendant to the burglary. The People argue that by failing to object, defendant has forfeited his claim concerning the value of the returned nonfunctional laptop and that substantial evidence supports an order of $650. We will order modification of the victim restitution order, reducing it to $650.
On January 4, 2009, Patti A. discovered that her home had been burglarized and she called the sheriff's department. She lost "two laptop computers, a plastic jar of rare coins and miscellaneous rings." Patti A. signed, under penalty of perjury, an itemized list of missing property valued at $15,600.
On August 29, 2009, sheriff's deputies found defendant to be in possession of a stolen car that defendant claimed he had bought from someone other than the owner. Defendant produced the bill of sale but the person listed was never found. (CM031221)
On December 18, 2009, a surveillance tape from Wal-Mart showed defendant taking a wallet and cell phone belonging to Ronnie J. When the wallet was returned, $500 was missing. (CM032599)
On April 14, 2010, Michelle B. discovered that her car had been broken into and that her purse and credit cards which she had left inside the car were missing. The next day, defendant attempted to use one of Michelle B.'s credit cards at a store. An investigation of the vehicle burglary led sheriff's deputies to defendant's motel room which he shared with co-defendant Gilbert. A search of their room revealed, among other things, one of Patti A.'s laptops, which did not work. Patti A. valued the laptop at $650. (CM032412)
Defendant entered a negotiated plea of no contest to receiving a stolen vehicle (CM031221), identity theft (CM032412) and grand theft (CM032599) in exchange for dismissal of the remaining counts and allegations [vehicle theft (CM031221), receiving stolen property, to wit, credit cards and a laptop computer, vehicle burglary, and an on-bail enhancement (CM032412)] with a Harvey waiver.
The probation report recommended that defendant pay victim restitution to Patti A. in the amount of $650, to reimburse Patti A. for the stolen but returned nonfunctional laptop. Defendant told the probation officer that he had purchased the ...