People v. Narron

• Decision Date: 12 June 1987
• Citation: 192 Cal.App.3d 724,237 Cal.Rptr. 693
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Leland Jeffrey NARRON, Defendant and Appellant. A033024.

Page 693

237 Cal.Rptr. 693

192 Cal.App.3d 724

The PEOPLE of the State of California, Plaintiff and Respondent, v. Leland Jeffrey NARRON, Defendant and Appellant.

A033024.

Court of Appeal, First District, Division 3, California.

June 12, 1987.

Manuel E. Nestle, Berkeley, Stephen D. Tulanian, Middletown, Susan B. Jordan, Ukiah, for defendant and appellant.

Leland Jeffrey Narron, pro per.

John K. Van de Kamp, Atty. Gen., David D. Salmon and Derald E. Grandberg, Deputy Attys. Gen., for plaintiff and respondent.

WHITE, Presiding Justice.

Appellant contests the validity of a condition of probation requiring him to make restitution to Lake County for expenses incurred in disposing of dangerous chemicals found in appellant's residence. He claims that neither Penal Code section 1203.1 nor 1203.04 authorizes the condition, because the county was not a direct victim of his crimes and the expenses incurred in destroying the chemicals were not related to any crime to which he pled guilty. We need not ultimately resolve these contentions because, as will be seen, the manner in which the condition was imposed was improper in that the prosecution failed to comply with the procedures for the recovery of such expenses set forth in Health and Safety Code section 11470.1. ¹ We hold that this statute, along with section 11470.2, provides the exclusive remedy for reimbursement of the expenses recoverable under these statutes. ²

I. Facts

During a legal search of appellant's mobile home, the police seized firearms, a vial of LSD tablets, marijuana and drug paraphernalia. They also detected chemicals and chemical equipment in the residence which were later destroyed. The probation officer's report to the court stated that "a professional chemical disposal company had to be summoned as many of the items recovered from the defendant's residence were too dangerous to store. This cost a total of $1,132.50."

Appellant explained at the sentencing hearing that some of these chemicals and equipment were for soil and water analysis; one chemical was a component substance of methamphetamine; others were for the manufacture of "acetic acid ethylacetate" and "sulfuric oxide." Many of these chemicals were quite toxic. Appellant objected to their seizure. He volunteered to identify the chemicals so the police could handle and analyze them safely, but this offer was not accepted.

Appellant pled guilty to possession of a firearm by an ex-felon (Pen.Code, § 12021, subd. (a)) and cultivation of marijuana (§ 11358). Three other charges, including possession of LSD, were dropped. ³ He was admitted to three years' probation. One of his conditions of probation was that "by way of providing restitution to the County of Lake[,] [t]he defendant will pay the sum of $1,132.50 to the probation officer in such installments as he shall direct." Appellant initially objected to this condition and requested a restitution hearing; at the scheduled hearing, however, he consented to the condition. Appellant contests the condition on appeal.

II. The Issues in This Appeal Were Not Waived by Appellant

Before addressing the substantive issues, we note several points relevant to the appealability of the restitution condition and the significance of appellant's consent. First, these issues are appealable without a certificate of probable cause (Pen.Code, § 1237.5) because the conditions of probation were not part of the plea bargain and were imposed after entry of the plea. (People v. Sumstine (1984) 36 Cal.3d 909, 915, fn. 3, 206 Cal.Rptr. 707, 687 P.2d 904; Cal.Rules of Court, rule 31(d).)

Second, the acceptance of probation does not preclude a challenge on appeal to the validity of a probation condition. " '[B]y accepting the benefits of probation a defendant does not waive the right to urge the invalidity of an improper, a void, condition on direct appeal from that judgment or on habeas corpus.' [Citation.]" (In re Mackey (1983) 142 Cal.App.3d 38, 43, 190 Cal.Rptr. 716; In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727.)

Third, because the prosecution did not contemplate bringing an action for the recovery of expenses under section 11470.1, appellant could not have waived his statutory right to have the prosecution abide by the procedures set forth therein. Appellant was not apprised of his right to these procedures before the restitution condition was imposed, and " 'a purported "waiver" of a statutory right is not legally effective unless it appears that the party executing it had been fully informed of the existence of that right, its meaning, the effect of the "waiver" presented to him, and his full understanding of the explanation.' [Citation.]" (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 389, 216 Cal.Rptr. 733, 703 P.2d 73.)

Fourth, we need not decide whether appellant waived his right to contest the validity of the restitution condition under Penal Code sections 1203.1 and 1203.04 in light of our holding that the prosecution could recover the disposal costs only pursuant to section 11470.1. We nevertheless briefly discuss the issues related to appellant's contention that restitution was unauthorized because the county was not a direct victim of his crimes. Such a discussion will provide background for the question we are called upon to resolve and is relevant to our analysis of the interplay between sections 11470.1 and 11470.2 and the above Penal Code provisions.

III. A County May Receive Restitution Even Though It Is Not a Direct Victim

It is well established that courts have broad discretion to determine whether probation should be granted and on what conditions. (People v. Richards (1976) 17 Cal.3d 614, 619, 131 Cal.Rptr. 537, 552 P.2d 97; People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.) Such discretion is embodied in Penal Code section 1203.1: "The court may impose and require any or all of the above-mentioned terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends be made to society for the breach of the law, for any injury done to any person resulting from that breach and generally and specifically for the reformation and rehabilitation of the probationer, ..." (Pen.Code, § 1203.1.)

In view of such discretionary power, "[a] condition of probation will not be held invalid unless it '(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 .) Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (People v. Lent, supra, 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545, fn. omitted.)

The court's power to require restitution to a crime victim as a condition of probation is also beyond question. Penal Code section 1203.1 provides that in granting probation the court may, in its discretion, "provide for restitution in proper cases; ..." and further: "The court shall consider whether the defendant as a condition of probation shall make restitution to the victim or the Restitution Fund...." (Pen.Code, § 1203.1.) Furthermore, in passing Proposition 8, the People of the State of California announced their "unequivocal intention ... that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [p] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary." (Cal. Const., art. 1, § 28, subd. (b).) To carry out this mandate, legislation was enacted which requires courts to impose restitution as a condition in all cases in which probation is granted. (Pen.Code, § 1203.04, subd. (a).) ⁴ Restitution shall be made "(1) To the victim, if the crime involved a victim.... [p] (2) To the Restitution Fund, if the crime did not involve a victim." (Ibid.)

We first note as a general proposition that restitution is not necessarily limited to persons. Neither Penal Code section 1203.1 nor section 1203.04 defines the term "victim." However, the policies of these provisions favor a definition which includes the government where it suffered loss flowing from a defendant's criminal conduct. Including the government as a potential "victim" accords with the court's discretion to employ probation conditions which ensure "that amends ... be made to society for the breach of the law, ..." (Pen.Code, § 1203.1.) Moreover, the concept of restitution embodies not only the notion that people who suffer loss as a result of criminal activity should be compensated for those losses (Cal. Const., art. I, § 28, subd. (b)), but also a perception of the value of restitution as a "deterrent to future criminality" (People v. Lent, supra, 15 Cal.3d at p. 486, 124 Cal.Rptr. 905, 541 P.2d 545), and "to rehabilitate the criminal." (People v. Richards, supra, 17 Cal.3d at p. 620, 131 Cal.Rptr. 537, 552 P.2d 97.) Both aims are furthered by imposing a restitution condition in appropriate cases whether or not the victim is an individual. We therefore agree with the dictum that "[t]he government may be the beneficiary of [restitution] if it has incurred actual loss due to the crime, as in the instance of tax evasion or theft of government property, ..." (People v. Baker (1974) 39 Cal.App.3d 550, 559, 113 Cal.Rptr. 248; People v. Burnett (1978) 86 Cal.App.3d 320, 322, 150 Cal.Rptr. 126.) ⁵

It also appears that Lake County could be...