People v. Cervantes

• Decision Date: 19 March 1984
• Docket Number: Cr. 6591
• Citation: 154 Cal.App.3d 353,201 Cal.Rptr. 187
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Juan Alvarez CERVANTES, Defendant and Appellant.

Page 187

201 Cal.Rptr. 187

154 Cal.App.3d 353

The PEOPLE, Plaintiff and Respondent, v. Juan Alvarez CERVANTES, Defendant and Appellant.

Cr. 6591.

Court of Appeal, Fifth District, California.

March 19, 1984.

[154 Cal.App.3d 355] Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Augustus E. Noland, Deputy State Public Defender, Sacramento, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Roger E. Venturi, and Ramon M. de la Guardia, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THE COURT: ^*

Upon a plea of nolo contendere appellant was convicted of being an accessory after the fact (Pen.Code, § 32). ¹ The sentencing court suspended imposition of sentence, placed appellant on formal probation for two years, and as a condition of probation ordered appellant to pay restitution in an amount and manner to be determined by the probation officer.

On appeal from the order granting probation, appellant contends that the condition that appellant pay restitution was improperly imposed because it constituted an unauthorized delegation to the probation officer of the court's discretionary power to determine the propriety and amount of restitution.

FACTS

The facts as summarized in the report of the probation officer, which was read and considered by the trial court before the sentencing hearing, may be briefly summarized.

On May 23, 1982, at about 10 p.m., Ruben Valdivia fired at least two shots into the residence of Maria Vasquez. Two of the shots hit Vasquez in her neck and shoulder. Neighbors gave police officers a description of the vehicle which Valdivia had driven; soon after the shooting officers located the vehicle. Appellant was near the vehicle and was taken into custody. Although neither Vasquez nor any of the witnesses was able to identify appellant as having been present in the car which Valdivia had driven to the Vasquez residence, appellant stated that he had shot Vasquez and demonstrated to the officers how he had held the gun.

Ultimately Ruben Valdivia pled guilty to assault with a deadly weapon; he admitted personally using a firearm. Appellant pled guilty to the charge of being an accessory after the fact pursuant to a plea bargain in which other counts of attempted murder, assault with a deadly weapon, shooting into an inhabited dwelling, and various enhancement allegations were dismissed.

The probation officer reported that as a result of her injuries, the victim was hospitalized for six days; no amount of medical costs was stated in the probation officer's report. Further, it cost $90 to repair a window in Vasquez' apartment which was damaged during the shooting.

The probation report shows that at the time of the sentencing hearing (August 25, 1982), appellant had been unemployed since May 1982. He received unemployment benefits in the amount of $118 biweekly. Appellant owed $2,900 in medical bills; appellant was reportedly in poor health due to injuries sustained in an automobile accident many years before. Appellant listed no assets in his financial statement.

At the sentencing proceedings held below, appellant's counsel argued that contrary to the recommendation of the probation officer, appellant should not be required to pay restitution to the victim. Counsel argued that such a condition of probation would not serve any rehabilitative purpose because it was not reasonably related to the offense of being an accessory, as opposed to a principal. Further, counsel noted that the amount of medical costs suffered by the victim was unspecified.

Without comment, the court placed appellant on probation on condition that he "pay restitution in an amount and manner to be determined by the Probation Officer."

ANALYSIS

Appellant argues that the court's unlimited delegation to the probation officer of the power to determine the amount and manner of restitution to be made to the victim was improper because unauthorized by statute. Appellant notes that there was no hearing regarding the scope of the injuries for which the court intended appellant to be responsible, and there was no judicial determination of appellant's ability to pay.

We accept appellant's contention. Trial courts are granted broad discretion under Penal Code section 1203.1 to prescribe conditions of probation. (People v. Richards (1976) 17 Cal.3d 614, 619, 131 Cal.Rptr. 537, 552 P.2d 97.) However, this discretion is not boundless; the authority is wholly statutory, and the statute furnishes and limits the measure of authority which the court may exercise. (People v. Keller (1978) 76 Cal.App.3d 827, 832, 143 Cal.Rptr. 184.) Section 1203.1, ² as effective at the time appellant committed his crime and was sentenced, granted the discretion to determine the terms and conditions of probation to the court, not to the probation officer. The language of the statute is clear. Reference to related statutory provisions reinforces the clear import of section 1203.1. Section 1203, subdivision (b) provides that the probation officer shall investigate the circumstances surrounding the crime and the prior history of the defendant and shall report to the court his findings and recommendations regarding the conditions of probation. ³ That section specifically defines the role of the probation officer with respect to restitution:

"The probation officer shall also include in his report for the court's consideration whether the court shall require, as a condition of probation, restitution to the victim or to the Indemnity Fund if assistance has been granted to the victim pursuant to Article 1 (commencing with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the Government Code, a recommendation thereof, and if so, the amount thereof, and the means and manner of payment." (Emphasis added.)

Section 1203, subdivision (b) likewise clearly contemplates that the matter of the propriety of probation and the conditions thereof shall be determined at a hearing by the court:

"The report shall be made available to the court and the prosecuting and defense attorney at least nine days prior to the time fixed by the court for the hearing and determination of the report, and shall be filed with the clerk of the court as a record in the case at the time of the hearing.... At a time fixed by the court, the court shall hear and determine the application, if one has been made, or, in any case, the suitability of probation in the particular case...." (Emphasis added.)

We find no statutory provision sanctioning a delegation of unlimited discretion to a probation officer to determine the propriety, amount, and manner of payment of restitution. Our review of the literature convinces us that these determinations are essentially judicial functions. Imposition of a condition of probation must serve a purpose specified in section 1203.1. (People v. Richards, supra, 17 Cal.3d at p. 619, 131 Cal.Rptr. 537, 552 P.2d 97.) An order for restitution has generally been deemed a deterrent to future criminality (People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545) and an effective means of furthering the rehabilitation of the offender (People v. Richards, supra, 17 Cal.3d at p. 620, 131 Cal.Rptr. 537, 552 P.2d 97). However, as our Supreme Court has noted, close questions arise when a court imposes a probationary condition requiring a defendant to pay for losses not actually caused by his criminal conduct; achieving a rehabilitative purpose occurs only when restitution is imposed in a proper case and in an appropriate manner. (See People v. Richards, supra, 17 Cal.3d at pp. 619-620, 131 Cal.Rptr. 537, 552 P.2d 97.) Although in ordering restitution a court is not limited to the transactions or amounts of which a defendant was actually convicted, restitution must relate to past or future criminal conduct. (People v. Lent, supra, 15 Cal.3d at pp. 486-487, 124 Cal.Rptr. 905, 541 P.2d 545.)

Further, it is established that a defendant has a right to present evidence to assist in the determination of his application for probation, and he is entitled to respond to adverse sentencing information. (People v. Arbuckle (1978) 22 Cal.3d 749, 753, 150 Cal.Rptr. 778, 587 P.2d 220.) Likewise, a defendant is entitled to have a court inquire into and to determine his ability to pay restitution, as well as his proper proportionate share of responsibility. (People v. Kay (1973) 36 Cal.App.3d 759, 762-763, 111 Cal.Rptr. 894.)

We are aware of language in reported cases to the effect that the practice followed in the instant case is permissible. However, these cases antedated the amendment of section 1203 in 1977 (Stats.1977, ch. 1122, § 4, p. 3599; Stats.1977, ch. 1123, § 5, p. 3605) which clearly contemplates that although probation officers must make recommendations regarding restitution, the court shall impose any requirement that restitution be made.

Further, a close examination of these cases shows that they do not stand for the proposition that a court may, in a case as close as that presented here, delegate all of the decisionmaking power to the probation officer. In People v. Williams (1966) 247 Cal.App.2d 394, 55 Cal.Rptr. 550, in the course of a lengthy analysis of a condition of restitution, the court noted that the practice of giving a probation officer the authority to determine the amount due and the manner of payment appeared to be well established. (Id., at p. 402, 55 Cal.Rptr. 550.) However, in Williams the restitutionary order complained of was set by the court; it specified a specific amount which the defendant had to repay to a third party who was not the victim of the assault of which the defendant had been convicted. (Id., at p. 395, 55 Cal.Rptr. 550.) The question in Williams was not whether the court had the authority to give the probation officer the power to determine the amount and manner of payment, but rather whether the court had erred in ordering reparation...