People v. Vournazos

• Decision Date: 19 February 1988
• Docket Number: No. B020977,B020977
• Citation: 198 Cal.App.3d 948,244 Cal.Rptr. 82
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Alexander VOURNAZOS, Defendant and Appellant.

Page 82

244 Cal.Rptr. 82

198 Cal.App.3d 948

The PEOPLE, Plaintiff and Respondent, v. Alexander VOURNAZOS, Defendant and Appellant.

No. B020977.

Court of Appeal, Second District, Division 7, California.

Feb. 19, 1988.

Daniel A. Dobrin, Culver City, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Andrew D. Amerson, Supervising Deputy Atty. Gen., and Alison Braun, Deputy Atty. Gen., for plaintiff and respondent.

LILLIE, Presiding Justice.

Defendant appeals from judgment (order granting probation) entered after his negotiated plea of nolo contendere to the unlawful driving or taking of a vehicle (Veh.Code, § 10851, subd. (a)) and to receiving stolen property (Pen.Code, § 496).

FACTS

On August 5, 1985, Craig Wright parked and locked his 1981 Mercedes Benz automobile in the garage at his residence. ¹ The following morning he discovered the car was missing. On August 7, 1985, at 12:30 a.m. while on patrol, Officer Holbrook saw a Mercedes Benz double parked. Holbrook noticed the car had no rear license plate and ascertained that it was stolen. He walked over to the car and found defendant in the driver's seat. Defendant told him that a man named Schwartz, whom he met on Hollywood Boulevard, gave him permission to drive the car; he did not know Schwartz's address, telephone number, or how to get in touch with him. From a computer check Holbrook learned that the car belonged to Wright. Holbrook arrested defendant and searched the car. In the front console immediately to the right of the driver's seat he found blank checks, credit cards and identification cards. Some of these items belonged to one Dale Condra and were stolen from his Mazda automobile in July 1985. When Wright parked and locked the Mercedes he left in it his briefcase containing a solid gold key. The car and the key were returned to Wright on August 7, 1985. Wright did not claim as his any of the checks and cards Holbrook found in the Mercedes.

By amended information defendant was charged in count I, with theft of the Mercedes, a felony (Pen.Code, § 487, subd. 3); count II, with driving and taking the Mercedes without Wright's consent and with intent to deprive him of title and possession of said vehicle, a felony (Veh.Code, § 10851, subd. (a)); count III, with burglary, a felony, committed by entering Dale On October 24, 1986, the supplemental probation hearing took place. The court considered a supplemental probation report to which was attached a statement of loss signed by Craig Wright and submitted by him to the probation department. In the statement Wright listed damage to the Mercedes, loss of certain articles of personal property and loss of wages, for a total of $2,180, as his losses ² resulting from defendant's violation of Vehicle Code section 10851, subdivision (a). Richard Stickney, defendant's supervising probation officer, testified that he determined defendant should pay Wright restitution of $2,180 based on Wright's statement of loss and his discussions with Wright. On cross-examination Stickney testified that he asked Wright's bookkeeper to send him documented proof of the losses claimed, but he did not receive such proof. No other witness testified. The court fixed $2,180 as the amount of restitution due Wright and ordered defendant to pay that sum to Wright in such manner as prescribed by his probation officer.

Condra's Mazda automobile, its doors being locked, with intent to commit larceny (Pen.Code, § 459); and count IV, with receiving stolen property consisting of checks and credit cards, a felony (Pen.Code, § 496). Defendant pleaded not guilty to each count. On March 5, 1986, pursuant to a plea bargain defendant withdrew his plea of not guilty to counts II and IV and pleaded nolo contendere to those counts. Based on a probation report, proceedings were suspended and defendant was placed on probation for four years on certain conditions, among others, that he spend the first year in jail and make restitution to the victims of his crimes through the probation officer in such amount and manner as the latter prescribed. At the conclusion the proceedings of March 5, 1986, the court set the matter for a supplemental hearing stating: "If there is any problem with regard to the court's conditions, I would ask you to communicate those to the probation department and the court will consider a modification at the time we handle the supplemental hearing. Is that acceptable?" and defendant responded, "Yes, sir."

Defendant appeals from the judgment granting probation.

DISCUSSION

I

An order granting probation is deemed to be a final judgment for the limited purpose of taking an appeal therefrom. (Pen.Code, § 1237, subd. (a); People v. Duncan (1986) 42 Cal.3d 91, 97, 227 Cal.Rptr. 654, 720 P.2d 2.) On appeal from such a judgment the defendant who accepts probation may seek relief from the restraint of any allegedly invalid condition of probation. (In re Bushman (1970) 1 Cal.3d 767, 776, 83 Cal.Rptr. 375, 463 P.2d 727.) On this appeal defendant challenges not only the validity of restitution as a condition of probation, but also the amount of restitution he was ordered to pay and his ability to pay. The order fixing the amount of restitution and directing defendant to pay it was made October 24, 1986, more than seven months after entry of the judgment granting probation and filing of defendant's notice of appeal from the judgment. On defendant's motion the record on appeal was augmented to include the proceedings of October 24, 1986. "Matters occurring after entry of judgment are ordinarily not reviewable: The appeal reviews the correctness of the judgment or order at the time of its rendition, leaving later developments to be handled in subsequent In March 1986, when defendant was granted probation with restitution as one of the conditions thereof, the court did not fix the amount of restitution; not until October 1986 was the amount of restitution determined to be $2,180 and defendant ordered to pay that sum. Thus, the judgment in effect was not a final judgment until the details of the restitution were supplied by the order of October 24, 1986. Under these circumstances the final judgment for purposes of appeal is the judgment granting probation as supplemented by the order of October 24, 1986, and defendant's appeal from the judgment of March 5, 1986 therefore was premature. We treat such appeal as filed immediately after the making of the order of October 24, 1986 (Cal.Rules of Court, rule 31(a)), thus permitting review of the proceedings of that date.

                litigation."  (9 Witkin, Cal.  Procedure (3d ed. 1985) Appeal, § 252, pp. 258-259.)   That rule is inapplicable in the present case
                

While defendant was convicted upon a plea of nolo contendere and failed to obtain a certificate of probable cause for appeal, Penal Code section 1237.5 ³ does not preclude the appeal inasmuch as defendant does not challenge the validity of the plea but asserts that errors were committed in the subsequent probation proceedings. (See People v. Kaanehe (1977) 19 Cal.3d 1, 8, 136 Cal.Rptr. 409, 559 P.2d 1028.)

We turn now to the merits of the appeal.

II

Defendant contends the restitution imposed as a condition of probation was improper because there was an insufficient connection between the crime of which he was convicted and the property losses claimed by victim Craig Wright.

Penal Code section 1203.1 expressly authorizes courts to "provide for restitution in proper cases." The term "restitution" or "reparation" as used in section 1203.1 has been judicially defined to mean "reimbursement to the victims of crime for actual loss flowing from the charged offense or from related misconduct." (People v. Baker (1974) 39 Cal.App.3d 550, 559, 113 Cal.Rptr. 248; see also People v. Baumann (1985) 176 Cal.App.3d 67, 76, 222 Cal.Rptr. 32.) "Restitution" is statutorily defined as "full or partial payment for ... losses ... caused by the defendant as a result of committing the crime for which he or she was convicted." (Pen.Code, § 1203.04, subd. (d).) The trial court is granted wide discretion under Penal Code section 1203.1 to prescribe conditions of probation. (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.) The discretion is not boundless (People v. Phillips (1985) 168 Cal.App.3d 642, 646, 214 Cal.Rptr. 417), but "[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....' [Citation.]" ( People v. Lent, supra, 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545.)

A

Restitution was clearly related to one of the crimes of which defendant was convicted, viz., taking or driving Wright's Mercedes Benz without his consent and with the intent to deprive him of title and possession of the vehicle. When Wright parked and locked the Mercedes on August 5, 1985, he left in it a briefcase containing a gold key. While Wright recovered the key, there is no evidence he recovered the briefcase. It is therefore a reasonable inference that the items of personal property, for the loss of which restitution was ordered,

were in the briefcase which in turn was in the car. Those items were lost as a result of defendant's unlawful taking and/or driving the Mercedes.

B

Defendant contends the restitution order related to conduct that was not criminal in that he was not convicted of the theft of the Mercedes which requires a state of mind (intent permanently to deprive the rightful owner of his property [People v. Kunkin (1973) 9 Cal.3d 245, 251, 107 Cal.Rptr. 184, 507 P.2d 1392] ) different from that required for the crime of which he was convicted. In...