People v. Goulart

• Decision Date: 26 September 1990
• Docket Number: No. D009759,D009759
• Citation: 273 Cal.Rptr. 477,224 Cal.App.3d 71
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerome Patrick GOULART, Defendant and Appellant.

Page 477

273 Cal.Rptr. 477

224 Cal.App.3d 71

The PEOPLE, Plaintiff and Respondent, v. Jerome Patrick GOULART, Defendant and Appellant.

No. D009759.

Court of Appeal, Fourth District, Division 1, California.

Sept. 26, 1990.

As Modified Oct. 1, 1990.

Review Denied Dec. 19, 1990.

[224 Cal.App.3d 76] Marianne Harguindeguy Cox, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen. and Tim J. Nader, Deputy Atty. Gen., for plaintiff and respondent.

WORK, Acting Presiding Justice.

Jerome Patrick Goulart appeals a judgment convicting him of unlawfully interfering with a line erected and maintained by the San Diego Gas & Electric Company (SDG & E) for transmitting electricity. (PEN.CODE, § 593.)¹ In exchange, similar charges for acts committed on May 5, May 9 and July 21, 1988, counts of interfering with natural gas delivery lines on April 27, May 5, May 9 and June 7, 1988, and a "wrap around" count of tampering with a SDG & E utility meter between April 27 and July 21, 1988, were dismissed subject to a Harvey ² waiver. The trial court sentenced Goulart to probation subject to his paying $42,596.50 in restitution. Goulart appeals, claiming the trial court abused its discretion in imposing the restitution order. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Evidence taken at a restitution hearing during sentencing, established that for more than six years, Goulart tampered with the gas and electric meters at his Lakeside home. Evidence that he had previously tampered with similar meters was also introduced. Goulart reduced his gas and electric bill by poking a hole in the plastic cover of utility meters and inserting a sewing needle which stopped the rotation of the meter disc so the energy consumption reading would cease at a certain point. To conceal his tampering, Goulart stopped the meter at approximately the same point each month.

Finally, Farrell Cox, a SDG & E investigator, discovered Goulart's scheme on June 7, 1988 by placing a line meter on Goulart's property to verify his energy consumption. This meter showed Goulart was actually consuming 17.8 therms of gas, and 100.2 kilowatt hours of electricity, per day. From these readings Cox estimated the total amount of gas and electricity stolen per month was $182 and $173, respectively.

On July 21, Cox was present when a search warrant was executed and noted the pool heater, the air conditioner, and several other major appliances were operating at the time. Goulart's meter, however, was not registering the energy being consumed. During the search, Cox found some old SDG & E bills, several of which contained written calculations purportedly evidencing the true amount of energy consumption for a particular month. In addition, the March 1982 bill bore the notation "too late." From this, and the fact the plastic meter was installed in March, Cox concluded Goulart commenced stealing energy in March 1982.

Goulart was charged with eight violations of section 593 and one violation of section 498, subdivision (b)(2). He pled guilty to one count of interfering with or obstructing an electrical line on April 27, 1988; the other eight counts were dropped. Before pleading guilty he was advised the maximum punishment he could receive was three years in prison plus a $10,000 fine. He received probation. Later, at a restitution hearing, he was ordered to pay SDG & E $42,596.50 in restitution. Due to his lack of financial resources, ³ Goulart was allowed to repay SDG & E in monthly installments of $800 plus 10 percent interest. Goulart now challenges the validity of the restitution order as a condition of his probation.

ANALYSIS

Section 1203 gives the trial court broad discretion in determining conditions of probation.

(People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.) Section 1203.1 authorizes the court to require a defendant to make restitution to the victim as a condition of probation. A reviewing court may not invalidate any condition of probation, including restitution, unless the condition "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality...." (People v. Dominguez (1967) 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290; see also People v. Lent, supra, 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545; People v. Corners (1985) 176 Cal.App.3d 139, 143, 221 Cal.Rptr. 387.)

Goulart maintains each of the three conditions for challenging a condition of probation are present. He particularly stresses the fact he has been ordered to repay SDG & E on the basis of crimes for which he has not been tried or convicted.

In order for any condition of probation to be upheld it must serve at least one purpose listed in section 1203.1. (People v. Clark (1982) 130 Cal.App.3d 371, 385, 181 Cal.Rptr. 682.) While restitution serves the obvious function of compensating crime victims, its primary goal is the rehabilitation of the criminal. ⁴ (People v. Richards (1976) 17 Cal.3d 614, 620, 131 Cal.Rptr. 537, 552 P.2d 97; Charles S. v. Superior Court (1982) 32 Cal.3d 741, 748, 187 Cal.Rptr. 144, 653 P.2d 648.) For a restitution order to have a such an effect, it must directly relate to the crime the defendant has committed. (People v. Dominguez, supra, 256 Cal.App.2d at p. 628, 64 Cal.Rptr. 290.)

The trial court is not, however, limited to imposing restitution for losses resulting from crimes of which the defendant was convicted. (People v. Lent, supra, 15 Cal.3d at pp. 486-487, 124 Cal.Rptr. 905, 541 P.2d 545; Williams v. People of State of New York (1949) 337 U.S. 241, 250, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337.) A court may also consider crimes which were charged but dismissed (People v. Baumann (1985) 176 Cal.App.3d 67, 78, 222 Cal.Rptr. 32); uncharged crimes, the existence of which is readily apparent from the facts elicited at trial (People v. Calloway (1974) 37 Cal.App.3d 905, 908, 112 Cal.Rptr. 745); or even charges of which the defendant was acquitted, if justice requires they be considered. ( People v. Lent, supra, 15 Cal.3d at p. 487, 124 Cal.Rptr. 905, 541 P.2d 545.)

"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, supra, 17 Cal.3d at p. 622, 131 Cal.Rptr. 537, 552 P.2d 97, fn. omitted.)

Here, it is readily apparent the trial court did consider energy thefts during time periods which Goulart was not, and some of which he could not have been, charged. It was certainly, however, within the trial judge's discretion to do so. Goulart does not contend the April 27 tampering to which he pled was the only offense he committed. Nor does he maintain he only committed those crimes which were charged. He does not deny the evidence clearly shows he had been tampering with SDG & E's meters since March 1982, fraudulently obtaining gas and electricity from SDG & E each month. (See People v. Baumann, supra, 176 Cal.App.3d at p. 77, 222 Cal.Rptr. 32.) Thus, the restitution order serves a purpose listed in section 1203.1, to rehabilitate the defendant.

Despite the restitution order's proper purpose, Goulart argues the trial court abused its discretion four ways: (1) by setting a restitution amount which exceeded

the scope of his Harvey waiver; (2) by imposing civil liability in a criminal case; (3) by basing the restitution amount on vague and inaccurate evidence; and (4) by imposing the restitution amount without considering his ability to pay.

1. SCOPE OF HARVEY WAIVER

Goulart argues a restitution order based upon uncharged crimes goes beyond the scope of his Harvey waiver in two respects. First, being assessed restitution for periods for which he was never charged with criminal conduct was not within his reasonable expectation of the plea bargain. Second, so much of the restitution order which compensates SDG & E for losses for periods which could not be charged criminally or redressed civilly because of applicable statute of limitations, is unwarranted. Neither contention has merit.

A

Implicit in plea bargains like this "is the understanding (in the absence of any contrary agreement) that defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count." (People v. Harvey, supra, 25 Cal.3d at p. 758, 159 Cal.Rptr. 696, 602 P.2d 396.) It was from the above parenthetical the notion of a Harvey waiver developed. A defendant who signs the typical waiver form agrees to allow the sentencing judge to consider his entire criminal history, including any unfiled or dismissed charges. (See People v. Baumann, supra, 176 Cal.App.3d at p. 75, 222 Cal.Rptr. 32.)

However, to be effective, when taking a Harvey waiver the court must personally advise the defendant of the penal consequences of his guilty plea. The defendant also must be told the maximum punishment for the admitted crimes. (In re Yurko (1974) 10 Cal.3d 857, 864, 112 Cal.Rptr. 513, 519 P.2d 561.) In this case, both the waiver form and the trial court advised Goulart he faced a maximum sentence of three years in state prison and a $10,000 fine. The ensuing sentence was well within these limits, a 90-day jail term plus 5 years probation with the possibility of a reduction to a misdemeanor on successful completion.

Nevertheless, Goulart maintains because the trial judge did not inform him he could be required to pay restitution to SDG & E as a condition of probation, the restitution order...