(Super. Ct. No. 10F0112C)
The opinion of the court was delivered by: Hoch , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Matthew Scott Ray entered a negotiated plea of no contest to first degree burglary in exchange for no state prison at the outset and dismissal of the remaining counts. The trial court granted defendant probation subject to certain terms and conditions including payment of victim restitution in the amount of $22,612.31.
Defendant appeals. He challenges the victim restitution order, renewing his claim that insufficient evidence supports a finding that the victim's losses were a result of his crime. We conclude that the trial court abused its discretion in imposing victim restitution because there is no evidence that the burglary committed by defendant resulted in the victim's losses.
On July 7, 2010, a detective "received information" that a burglary had occurred at a particular location, that the burglars had taken several items, and that the burglars intended to return to remove a safe. Several deputies went to the location and found that a house, trailer, garage, and several storage structures had all been opened. As demonstrated by dust patterns, some items had been removed. Other items were laid out in the house as if someone intended to return for them and a safe was on a dolly. The deputies secured all the buildings. From 11:00 p.m. on July 7 until 5:30 a.m. on July 8, the deputies watched the place but saw no suspects.
At 2:00 p.m. on July 8, detectives went to the location to take photographs and obtain fingerprints. Presumably, the detectives left at some unspecified time because when the deputies returned at 8:30 that night to watch the place, they discovered that someone had again broken into the house and had left the back door unsecured.
About 10:15 p.m. on July 8, the deputies saw a white truck drive past the property onto a dirt road, and heard the engine stop and doors close. Fifteen minutes later, they saw a flashlight scanning the property near the house. The flashlight turned off, and 15 minutes later, the deputies heard vehicle doors close and a vehicle coming back down the dirt road. The deputies saw three people walking from the dirt road through the woods, using flashlights. The threesome, later identified as defendant, Jean Paul Barone, and Catrina Shantell Barone, approached the rear door of the house, and Catrina Barone entered. She came back out without carrying anything. The deputies arrested the threesome. Each had a flashlight, defendant had a set of gloves in his pants pocket, and Jean Barone had a set of gloves and a mask in his back pocket.
The information charged defendant and the Barones with first degree burglary, receiving stolen property, grand theft of a firearm, and conspiracy to commit first degree burglary, all on July 8. The information also charged the three with first degree burglary on July 6. Special allegations against Jean Barone included four on-bail enhancements, two prior prison terms, and a prior strike (2001 burglary). Special allegations against Catrina Barone included two on-bail enhancements and two prior prison terms.
Defendant pled no contest to the July 8 burglary in exchange for no state prison at the outset and the dismissal of the remaining counts. 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 (Harvey).)
Defendant told a detective that he did not have anything to do with any earlier burglary. He claimed the Barones told him about a safe containing money in a house that was probably abandoned and that if he helped remove it, he would get a share of the money. He agreed to help but upon arrival at the location he knew the house was not abandoned. He voiced his concerns but the Barones told him not to ...