People v. Campbell

• Decision Date: 05 January 1994
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Damon Burns CAMPBELL, Defendant and Appellant. E011134.

Page 433

26 Cal.Rptr.2d 433

21 Cal.App.4th 825

PEOPLE of the State of California, Plaintiff and Respondent, v. Damon Burns CAMPBELL, Defendant and Appellant.

E011134.

Court of Appeal, Fourth District, Division 2, California.

Jan. 5, 1994.

Certified for Partial Publication. ^*

[21 Cal.App.4th 827] Patricia O'Neill, Laguna Beach, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Garrett Beaumont, Supervising Deputy Atty. Gen., and James E. Atkins, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

TIMLIN, Associate Justice.

An information charged defendant, Damon Burns Campbell, with first degree burglary in count 1 (Pen.Code, § 459) ¹ and with dissuading a witness by force or threat in count 2 (§ 136.1, subd. (c)(1)). Pursuant to a plea bargain, defendant pled guilty to count 2 and count 1 was dismissed. ² The plea agreement provided for a grant of probation.

The court granted defendant three years supervised probation and found defendant unable to reimburse the county for attorney fees and the cost of the presentence report but able to pay $15 per month for probation supervision costs. The court stayed a $2,000 restitution fine. After holding a hearing on the value of the items taken in the burglary, the court ordered defendant, as a condition of probation, to pay restitution directly to the victim of the burglary in dismissed count 1 in the amount of $4,560. Codefendant and defendant were held jointly and severally liable for the payment of restitution to the victim.

On appeal, defendant contends: (1) the restitution order was not part of the plea bargain, (2) the court failed to hold a hearing on defendant's ability to pay restitution, and (3) the court erred in holding defendant jointly and severally liable for restitution. In his reply brief, defendant also contends the court erred in failing to hold a hearing on his ability to pay reasonable costs of probation.

I FACTS

Scott Harrold saw defendant standing in front of Eldon Hamman's house. Hamman had left for vacation the day before. Codefendant, James Keifer, walked out of Hamman's house and placed the television he was carrying in the trunk of the car next to which defendant was standing. Defendant, Keifer and another person got into the car and drove away.

Two days later, defendant and Keifer contacted Harrold and his coworker at Harrold's place of work. Defendant warned them not to say anything about the burglary of Hamman's house and then kicked the coworker in the head.

When Hamman returned from vacation, he discovered someone had broken into his house. Several items were missing from his house, including a portable air compressor, a color television, some jewelry and several firearms.

II DISCUSSION

A. Restitution as a Condition of Probation is Not in Violation of the Plea Agreement

Defendant contends the restitution order of $4,560 as a condition of probation violated the negotiated plea agreement and must be stricken. Although it mentions the possibility of a restitution fine, the plea agreement does not mention direct restitution to the alleged victim in dismissed count 1 as a condition of probation. (E.g., People v. Nystrom (1992) 7 Cal.App.4th 1177, 1180, 10 Cal.Rptr.2d 94.) It therefore appears that prior to entering his guilty plea, defendant was not advised that direct restitution to the victim alleged in the dismissed count 1 was a possible probation term, if he was granted probation on count 2, to which he pled guilty.

In People v. Walker (1991) 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861, the court held that "[w]hen a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agree upon." (Id., at p. 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861.) Failure to abide by the plea agreement is a violation of the defendant's due process rights. The Walker court was concerned with the imposition of a restitution fine under Government Code section 13967, of which the defendant had not been advised prior to entering his guilty plea. That court held the consequences of a restitution fine to a defendant are severe enough that it qualifies as a penal consequence of which defendant should be advised prior to entry of his guilty plea and an item which should generally be considered in plea negotiations. (54 Cal.3d at p. 1024, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

In the present case, however, the contested order is the imposition of direct restitution to the victim named in the dismissed count 1 as a condition of probation granted in reference to his conviction on count 2. Unlike the restitution fine in Walker, this restitution order is not a penal consequence. " 'Probation is an act of leniency, not a matter of right.' [Citation.] Probation as a sentencing alternative typically contains conditions; and one of the most frequently imposed conditions is the requirement restitution be paid to the victim." (People v. Goulart (1990) 224 Cal.App.3d 71, 80-81, 273 Cal.Rptr. 477.) The court in Goulart held the defendant need not be informed of the possibility of a restitution order as a probation condition before the court accepts his guilty plea. (Id., at p. 81, 273 Cal.Rptr. 477.) A direct victim restitution order imposed as a probation term under these conditions does not violate a plea agreement.

As for defendant's objection at sentencing and now on appeal that the restitution order was directed to a victim alleged in dismissed count 1, defendant concedes that the plea agreement contains a Harvey waiver ³ wherein the court could consider the dismissed count for purposes of restitution. Given this agreement, an order for payment of restitution to the victim of a dismissed but related count is permissible. (People v. Baumann (1985) 176 Cal.App.3d 67, 75-79, 222 Cal.Rptr. 32.)

The court in People v. Goulart, supra, 224 Cal.App.3d at page 79, 273 Cal.Rptr. 477 notes: " 'It is obvious that unless the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted, this salutary rehabilitative effect cannot take place. No rehabilitative purpose can be served by forcing a person to confront tendencies which differ from those which induced his crime.' (People v. Richards [1976] 17 Cal.3d [614,] 622 [131 Cal.Rptr. 537, 552 P.2d 97] fn. omitted.)" However, courts have interpreted the "same state of mind" requirement for imposing restitution in this type situation rather broadly. Some courts cite Proposition 8 and its expansion of restitution to a victim as vitiating the "same state of mind" requirement. ( People v. Dailey (1991) 235 Cal.App.3d Supp. 13, 17, fn. 5, 286 Cal.Rptr. 772.) Other courts distinguish Richards on its facts. ( People v. Walmsley (1985) 168 Cal.App.3d 636, 640-641, 214 Cal.Rptr. 170.) Whatever the approach, we believe there is a sufficient relationship between the conduct underlying count 2 and the alleged conduct which was the basis for count 1. In pleading guilty to count 2, defendant admitted that by force and threats he attempted to dissuade an eyewitness from testifying against him regarding the burglary charge in count 1. In our view, those tendencies which implicated the conduct charged in count 1 do not substantially differ from those tendencies which motivated his criminal conduct as alleged in count 2. His attempt to dissuade the witness was an extension of his burglary and theft activities, i.e., commit a particular crime and avoid responsibility for it.

B. Hearing on Ability to Pay Restitution

Defendant argues the court erred in failing to hold a hearing on his ability to pay restitution. A defendant is entitled to a judicial determination of his ability to pay restitution. (People v. Hartley (1984) 163 Cal.App.3d 126, 128, 209 Cal.Rptr. 131.) Defendant contends the failure to hold such a hearing violates his due process rights. It does not appear from the record on appeal that a formal and specific hearing on defendant's ability to pay restitution was held.

The requirements of due process are met if a defendant is afforded an opportunity to present evidence on his ability to pay. (People v. Ryan (1988) 203 Cal.App.3d 189, 195, 249 Cal.Rptr. 750.) There is no requirement that a court make an express finding of the ability to pay, and the court may properly base its restitution order on the probation officer's report which recommends restitution. (Id., at p. 196, 249 Cal.Rptr. 750; cf. People v. Baumann, supra, 176 Cal.App.3d at p. 81, 222 Cal.Rptr. 32.) As long as the defendant is given an opportunity to respond to any matters in the probation report regarding restitution, due process is satisfied. (People v. Ryan, supra, 203 Cal.App.3d at p. 196, 249 Cal.Rptr. 750; cf. People v. Baumann, supra, 176 Cal.App.3d at p. 82, 222 Cal.Rptr. 32.)

In the present case, the probation officer's report recommended restitution to the victim alleged in count 1 as a condition of probation. Defendant informed the probation officer he would be willing to pay restitution if ordered by the court and did not mention that he would be unable to pay it. ⁴ At the sentencing hearing, defendant was allowed to voice his objections to the probation officer's report. Defendant objected to the recommended restitution because it involved the victim of the dismissed count, but did not mention an inability to pay restitution. At the later hearing to determine the amount of restitution, defendant did not mention he was unable to pay it. It appears defendant had several opportunities to present evidence regarding his ability to pay restitution but did not do so. A timely objection allows the sentencing court to modify or...