People v. Richards

• Decision Date: 30 July 1976
• Docket Number: Cr. 17985
• Citation: 552 P.2d 97,17 Cal.3d 614,131 Cal.Rptr. 537
• Parties: , 552 P.2d 97 The PEOPLE, Plaintiff and Respondent, v. Wesley Cisio RICHARDS, Defendant and Appellant.
• Court: California Supreme Court

Page 537

131 Cal.Rptr. 537

17 Cal.3d 614, 552 P.2d 97

The PEOPLE, Plaintiff and Respondent, v. Wesley Cisio RICHARDS, Defendant and Appellant.

Cr. 17985.

Supreme Court of California In Bank.

July 30, 1976.

Anthony P. David, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert R. Granucci and David Schneller, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

We hold here that absent extraordinary circumstances probation for a defendant may not be conditioned on restitution of sums involved in a purported crime of which he was acquitted.

Defendant was charged with two counts of grand theft (Pen.Code, § 484) arising out of the sale of mining claims and quitclaim deeds. The People presented evidence that William Ward and Juanita Garbuio, in separate transactions, purchased documents at a public auction because defendant, who executed the sales, led them to believe they were buying sufficient interests to enable them to hunt, fish, or build houses. In fact, the documents conveyed virtually no rights. A jury convicted defendant with respect to the Garbuio sale, but found him not guilty of the charge arising from the Ward transaction. The court placed defendant on two years' probation, on condition that he serve five months in county jail and that he pay $925 in 'restitution' to Ward.

I

Before determining the validity of the restitution order, we turn briefly to defendant's attack on the conviction. He asserts that certain testimony by Mrs. Garbuio was erroneously admitted.

The testimony concerned a conversation among defendant, Mrs. Garbuio and her husband, and the district attorney, that took place in the latter's office. Mrs. Garbuio told the jury that she asked defendant for the return of her money, and that the district attorney accused defendant of failing to perform the groundwork necessary to validate the claim he sold her. At this point a defense objection on hearsay grounds was overruled. In response to her refund request and the district attorney's accusation, Mrs. Garbuio continued, defendant said he did not have the money to repay Mrs. Garbuio. He said he needed more time and offered Mrs. Garbuio another mining claim, which she characterized as 'just as worthless as the one we had just had.' The court overruled another hearsay objection, noting that the testimony regarding the conversation had not been completed.

On cross-examination, Mrs. Garbuio elaborated on her direct testimony. She said that defendant expressly admitted he failed to do the necessary groundwork on the mining claim because he did not have time. She also explained her characterization of the claim as worthless: a third person could usurp her stake in the claim simply by performing the necessary groundwork.

The witness' recollection of defendant's own statements is clearly admissible. Under Evidence Code section 1220, evidence of a statement is not made inadmissible by the hearsay rule when offered against a party declarant. ¹

The testimony concerning statements of the district attorney presents a closer question. By themselves, the statements would be inadmissible hearsay. However, they were introduced to show defendant's response to them, an admissible purpose under Evidence Code section 1221. The section provides that, absent constitutional considerations not raised by these facts, a statement offered against a party may be introduced when the party manifests his adoption of the statement or his belief in its truth. (People v. Preston (1973) 9 Cal.3d 308, 313--316, 107 Cal.Rptr. 300, 508 P.2d 300.)

Mrs. Garbuio's testimony on direct examination, while somewhat ambiguous, supported the reasonable inference that the district attorney accused defendant of failing to perform the necessary groundwork on the claim he helped sell, and defendant, understanding the allegation, failed to deny it. Whether defendant's response actually constituted an adoptive admission was a question for the jury to decide. (People v. Preston (1973) supra, 9 Cal.3d 308, 316, 107 Cal.Rptr. 300, 508 P.2d 300; People v. Davis (1954) 43 Cal.2d 661, 671-- 672, 276 P.2d 801). The court cannot be faulted for overruling the objection to the testimony pending its completion. If, at that point, defendant had moved to strike the prosecutor could have elicited from Mrs. Garbuio testimony that defendant directly admitted he failed to perform the groundwork, an admission that was eventually disclosed on cross-examination.

Defendant also maintains that admission of the district attorney's statements violated his Sixth Amendment right to confront adverse witnesses. This contention was answered in People v. Preston (1973) supra, 9 Cal.3d 308, 315--316, 107 Cal.Rptr. 300, 508 P.2d 300, in which we held that an out-of-court statement could properly be admitted against a defendant for the purpose of demonstrating the defendant's adoption of the statement, provided the jury is instructed on the limited purpose of admission. In this case the prosecutor expressly declared, after defendant's objection, that the evidence was offered only to show the response of defendant to the district attorney's accusation. Although no limiting instruction was given, defendant, having failed to request such an instruction, may not complain of its absence. (Evid.Code, § 355; People v. Perry (1972) 7 Cal.3d 756, 787--788, 103 Cal.Rptr. 161, 499 P.2d 129.)

II

We turn now to the question of the validity of the probation order. The court ordered defendant, as a condition of probation, to make 'restitution' to Ward, even though defendant was acquitted of criminal charges in the Ward transaction. ²

Trial courts are granted broad discretion under Penal Code section 1203.1 to prescribe conditions of probation. (In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727.) However, a condition imposed must serve a purpose specified in the code section.

This requirement presents no problem for a court ordering a convicted defendant to make restitution to the victim for damages actually caused by the crime. Section 1203.1 expressly allows courts to impose reparation conditions 'for any injury done to any person resulting from such breach.' A closer question arises, however, when the court imposes a probationary condition requiring a defendant to pay a third party for losses not actually caused by the defendant's crime. In those circumstances the defendant is in effect required to choose between accepting incarceration and righting a wrong he may not in fact have committed. Indeed, here the trial judge, in ordering defendant to make restitution, declared, 'I would be disposed to giving him a little less time in jail for that.'

A number of jurisdictions, refusing to allow courts to impose such conditions, have limited restitution to actual losses caused by the crime proved. ³ California has not been so parsimonious. Restitution may exceed the losses for which a defendant has been held culpable (People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545; People v. Miller (1967) 256 Cal.App.2d 348, 64 Cal.Rptr. 20). But courts must tread lightly in this area lest they be reduced to 'mere collection agencies' (People v. Miller, supra, at p. 356, 64 Cal.Rptr. 20; People v. Williams (1966)247 Cal.App.2d 394, 409, 55 Cal.Rptr. 550), and restitution must in each case be narrowly tailored to serve a purpose described in section 1203.1.

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.

But the trial judge herein appeared to posit an additional and ill-conceived purpose: to resolve the civil liability of the criminal. In making the restitution order, the court observed that defendant 'owed the money' to Ward, and 'allowing him to avoid this debt would be unjust.'

Disposing of civil liability cannot be a function of restitution in a criminal case. To begin with, the criminal justice system is essentially incapable of determining that a defendant is in fact civilly liable, and if so, to what extent. A judge may infer from a jury verdict of guilt in a theft case that a defendant is liable to the crime victim. But a trial court cannot properly conclude that the defendant owes money to a third party for other unproved or disproved crimes or conduct. A party sued civilly has important due process rights, including appropriate pleadings, discovery, and a right to a trial by jury on the specific issues of liability and damages. The judge in the criminal trial should not be permitted to emasculate those rights by simply declaring his belief that the defendant owes a sum of money.

The Michigan Supreme Court, in People v. Becker (1957) supra, 349 Mich. 476, 84 N.W.2d 833, 839, has pointed out the weakness of such practice. Striking down a probation condition requiring a defendant convicted of leaving the scene of an accident to pay the medical expenses of the pedestrians he hit, the court declared, 'The liability . . . is fixed by the (trial) court. How? Is it by a trial in open court, upon pleadings defining the claims and issues, with the taking of testimony under oath, confrontation of witnesses, cross-examination, and assertion of defenses, including that of contributory negligence? Clearly not. It was determined, says the court, 'from my investigation."

Similarly, in the present case, defendant's liability to Ward cannot be based merely on the trial court's belief that money was owed to Ward. No matter how compelling the evidence may have been, the jury made no finding that defendant owed a debt. More importantly, defendant...