People v. Hartley

• Decision Date: 21 December 1984
• Docket Number: Cr. F002710
• Citation: 163 Cal.App.3d 126,209 Cal.Rptr. 131
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Myron Douglas HARTLEY, Defendant and Appellant.

Page 131

209 Cal.Rptr. 131

163 Cal.App.3d 126

The PEOPLE, Plaintiff and Respondent, v. Myron Douglas HARTLEY, Defendant and Appellant.

Cr. F002710.

Court of Appeal, Fifth District, California.

Dec. 21, 1984.

As Modified Jan. 18, 1985.

[163 Cal.App.3d 127] Lawrence M. Schoenke, Rohnert Park, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Nancy Sweet and David A. Rhodes, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

THE COURT. ^*

Defendant appeals from his conviction, pursuant to his guilty plea, of grand theft in violation of Penal Code section 487, subdivision (1). As a condition of probation defendant was ordered to pay the victim, DeAnne McKelroy, the sum of $2,768.00 in restitution. On appeal, defendant claims the court erred in denying his request for a hearing both as to his ability to pay restitution and as to the value of the property stolen from Ms. McKelroy.

DISCUSSION

Defendant challenges imposition of restitution as a condition of probation without benefit of a hearing. We agree that defendant is entitled to a hearing on his ability to pay, as well as the replacement value of the goods which were taken.

As amended in 1982, Penal Code section 1203.1 provides in pertinent part:

"The court or judge thereof, in the order granting probation, may suspend the imposing, or the execution of the sentence and may direct that such suspension may continue for such period of time not exceeding the maximum possible term of such sentence, ... The court, or judge thereof, in the order granting probation and as a condition thereof ... shall provide for restitution in proper cases; and may require bonds for the faithful observance and performance of any or all of the conditions of probation." (Emphasis added.)

Under the provisions of Penal Code section 1203.04, restitution must, in normal circumstances, be awarded in every case. ¹

Notwithstanding the legislative determination that restitution shall be imposed as a condition of probation unless the court finds that such a condition would be inappropriate and so states on the record, the judicial discretion in fixing the amount of restitution, while broad, is not absolute. As this court recently reaffirmed in People v. Cervantes (1984) 154 Cal.App.3d 353, 201 Cal.Rptr. 187, a defendant is "entitled to a judicial determination of the propriety of restitution to the victim ..., and of the amount, if any, which the appellant must pay in light of his individual culpability and his ability to pay." (Id., at p. 361, 201 Cal.Rptr. 187, emphasis added. See also People v. Kay (1973) 36 Cal.App.3d 759, 762-763, 111 Cal.Rptr. 894.)

Moreover, in order to effectuate the purpose of probation, restitution imposed as a condition of probation should be "narrowly tailored to serve a purpose described in section 1203.1. [p] The major goal of section 1203.1 is to rehabilitate the criminal. Restitution imposed in a proper case and in an appropriate manner may serve the salutary purpose of making a criminal understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole." (People v. Richards (1976) 17 Cal.3d 614, 620, 131 Cal.Rptr. 537, 552 P.2d 97.) Thus, although California courts have upheld restitution in amounts exceeding the losses for which the defendant was found culpable (see, e.g., People v. Lent (1975) 15 Cal.3d 481, 486-487, 124 Cal.Rptr. 905, 541 P.2d 545), the Supreme Court in People v. Richards, supra, advised courts to "tread lightly in this area." (Id., at p. 620, 131 Cal.Rptr. 537, 552 P.2d 97.) The necessity of directly relating restitution to the crime committed, particularly in property crimes, is evident in Penal Code section 1203.04, subdivision (b)(3), ² which provided at the time of defendant's sentencing, "Restitution means payment to the aggrieved parties for the value of stolen or damaged property, ... The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (Emphasis added.)

The purpose of the hearing sought by defendant in the instant case was twofold: (1) he sought a judicial determination of his ability to pay restitution and (2) he sought a judicial determination of the replacement cost of the property stolen from DeAnne McKelroy. The trial court in denying his request stated:

"I am absolutely denying it. I am not going to project any further considerations here. The--the man is first saying I want to enter a plea, then he's saying I'm not guilty, and then he wants a hearing. He may have it if he likes. If he doesn't want to accept the terms of probation, certainly doesn't have to."

Of course a request for a hearing on the amount of restitution to be imposed as well as ability to pay is not the equivalent of a refusal to accept the terms of probation, nor should a defendant be forced to choose between probation, when appropriate, and a related hearing to which he is entitled by law. Further, the facts in the instant case strongly demonstrate the need for a hearing at least on defendant's ability to pay and, to a less compelling extent, on the amount of restitution to be imposed.

We recognize that this case is not controlled by our earlier decision in People v. Cervantes, supra, since the trial court in the instant case did not expressly place the matter of restitution within the sole discretion of the probation officer. While we need not reiterate the careful analysis undertaken in Cervantes, we find its rationale equally persuasive when the trial court accepts without question the probation officer's recommendation as to the amount of restitution, denying a defendant's request to be heard, and when neither the probation officer nor the trial court appear to consider a defendant's obviously severely limited resources with...