People v. Ryan

• Decision Date: 28 July 1988
• Docket Number: No. A039435,A039435
• Citation: 203 Cal.App.3d 189,249 Cal.Rptr. 750
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas RYAN, Defendant and Appellant.

Page 750

249 Cal.Rptr. 750

203 Cal.App.3d 189

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas RYAN, Defendant and Appellant.

No. A039435.

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

July 28, 1988.

William D. Farber, San Rafael, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Morris Beatus, Catherine A. Rivlin, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

WHITE, Presiding Justice.

Defendant and appellant Thomas Ryan appeals from the judgment (order granting probation) of the Superior Court of Marin County entered after he pled guilty to two counts of burglary. (Pen.Code, § 459.) Imposition of sentence was suspended and appellant was placed on probation for three years on several conditions including that he (1) complete a residential drug treatment program, (2) make restitution to the victim in the amount of $8,045, and (3) pay a restitution fine of $8,000. The condition that he pay a restitution fine of $8,000 was stayed with the stay to become permanent upon successful completion of probation. Appellant contends on appeal that the trial court "erred and abused its discretion ... in ordering appellant to pay restitution to the victim in the absence of any evidence or determination of his income or ability to pay." Appellant is precluded from raising such an issue for the following reasons: (1) it was his counsel who stated that appellant was ready to make full restitution to the victim in the amount of which he was responsible; (2) counsel for appellant disputed some of the sums (approximately $555 out of the restitution claim for $8,075) that were considered to be attributable to the burglaries and stated that a restitution hearing would be necessary only in regards to a determination of whether he should be required to make restitution for the disputed sums; and (3) counsel for appellant further stated that appellant could comply with the conditions of probation which included full restitution.

At the sentencing hearing, counsel for appellant asked the court to consider as a condition in mitigation that appellant "is ready to make full restitution to the victims for these offenses...." Whereupon the trial court asked counsel for appellant: "Do you mean full restitution? You said earlier that you don't agree with the figures." Counsel for appellant again stated that he meant "full restitution that [appellant] is responsible for if a hearing is necessary. The amounts that were taken in connection with the two burglaries or if he damaged property during the commission of these burglaries then I think he would be responsible for those amounts."

The victim submitted a restitution claim in the amount of $8,075. ¹ Said sum (according to the victim) represented $7,500 in cash that was taken during the two burglaries, $375 for damage to personal property ($250 for broken equipment and $125 for an antique box that was broken), $20 for two bottles of liquor and $180 for two days loss of work for court appearances.

During a discussion between the trial court and counsel regarding the placement of appellant on probation, defense counsel made the following statements: He did not think his client should be responsible for the wages the victim lost on account of her appearances in court. ² In regard to the restitution claim submitted by the victim, counsel stated the following regarding any disputed amount (other than lost wages) and full restitution: "Your Honor, the $250 for broken equipment and $125 for an antique box which was allegedly broken, I have never seen or heard any information about that prior to this probation report. That was not indicated in any of the police reports or testified to by the victim at the preliminary hearing so I'm just indicating that we are not necessarily disputing that but some further investigation would be necessary to see if Mr. Ryan is responsible for those amounts but whatever the amount of restitution is determined to be either informally or through the court, Mr. Ryan is willing to make full restitution." (Emphasis added.) Counsel for appellant stated that appellant "can comply with the terms of probation...." (One of the conditions of probation recommended by the probation officer was that appellant make restitution in the amount of $8,045.)

Immediately after defense counsel completed making his bid for granting appellant probation, the trial court asked appellant if he wished to say anything. Appellant made a plea for probation without commenting on the issue of restitution. However, in appellant's statement that is attached to the probation report prepared prior to sentencing, appellant set out what he considered to be an appropriate sentence and appellant included in his statement of an appropriate sentence "full retribution of the stolen money to the owner."

Following appellant's statements in open court concerning probation, the trial court conducted a restitution hearing at which the victim testified regarding the amount of money she lost on account of the two burglaries including damage to property, lost wages and stolen cash. After the victim testified, the court asked defense counsel if he had any evidence he wanted to present on the issue of restitution. Counsel stated that he had not anticipated a restitution hearing and therefore had no evidence to present.

Penal Code section 1203.04 provides that the trial court "shall require, as a condition of probation, that the person make restitution" to the victim or the Restitution Fund unless "the court finds, ... on the record, that there are compelling and extraordinary reasons why restitution should not be required...." (Pen.Code, § 1203.04, subds. (a), (b).) Restitution is defined as "full or partial payment for the value of stolen or damaged property, medical expenses, and wages or profits lost due to injury or to time spent as a witness or in assisting the police or prosecution, which losses were caused by the defendant as a result of committing the crime for which he or she was convicted." (Pen.Code, § 1203.04, subd. (d).) Penal Code section 1203.1 also provides that when the court suspends imposition of sentence and grants probation, it shall in imposing conditions of probation provide for restitution in proper cases.

There is no statutory requirement of a finding that the defendant has the ability to pay the amount of restitution required as a condition of probation. Nor is there any statutory provision for a hearing on a defendant's ability to pay restitution. Penal Code section 1203.2, subdivision (a), does state that "[r]estitution shall be consistent with a person's ability to pay." The lack of any statutory provision for a hearing and finding on restitution should be contrasted to Penal Code sections 1203.1b, subdivision (a) ("In any case in which a defendant is convicted of an offense and granted probation, the court may, after a hearing, make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of probation and of conducting the presentence investigation and preparing the presentence report made pursuant to section 1203."), 1203.1c, subdivision (a) ("In any case in which a defendant is convicted of an offense and is ordered to serve a period of confinement in a county jail, city jail, or other local detention facility as a term of probation or a conditional sentence, the court may, after a hearing, make a determination of the ability of the defendant to pay all or a portion of the reasonable costs of such incarceration, including incarceration pending disposition of the case."), 1203.1e (same type of provision with regard to the cost of parole supervision), and 987.8 (a similar provision with regard to the cost of legal counsel). Penal Code section 1203.1f provides if "practicable, the court shall consolidate the ability to pay determination hearings authorized pursuant to Sections 987.8, 1203.1b, 1203.1c, and 1203.1e into one proceeding, and the determination of ability to pay made at the consolidated hearing may be used for all purposes relating to these listed sections."

The right of a victim to restitution from the person convicted of a crime from which the victim suffers a loss became a constitutional right when Proposition Eight was enacted. That constitutional right is not predicated on the defendant's ability to pay. "It is the unequivocal intention of the People of the State of California 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. I, § 28, subd. (b).) The provision of Proposition Eight providing for direct payment of restitution to the victim is not self-executing and requires action by the Legislature. ³ (People v. Vega-Hernandez (1986) 179 Cal.App.3d 1084, 225 Cal.Rptr. 209.) "[S]ection 28(b) does not identify the 'compelling and extraordinary reasons' which may justify the denial of restitution. The Legislature may therefore determine, for example, that the indigency of the convicted person, the fact that he or she will be required to serve a lengthy prison term, or other factors may excuse the duty to make restitution to the victim. (fn. omitted.)" ( Id., at p. 1097, 225 Cal.Rptr. 209.) The Legislature has not set out factors that may be considered in determining if compelling and extraordinary reasons exist for not imposing restitution, and Penal Code section 1203.04 has merely reiterated the language set out in Proposition Eight ("If the court finds, and states its reasons for the finding on the record, that there...