People v. Whiteman CA6

Filed 3/23/16 P. v. Whiteman CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041662
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1246332)

v.

GRANT THOMAS WHITEMAN,

Defendant and Appellant.

Defendant Grant Thomas Whiteman pleaded no contest to vehicle tampering and
receiving stolen property—a Blackberry cellular phone. The phone was one of several
items stolen from the victim of an automobile burglary unrelated to the tampering
offense. The trial court ordered defendant to pay restitution to the victim for her entire
loss. Defendant challenges the evidentiary basis for the restitution order, and its nexus to
his conviction and rehabilitation. Finding no abuse of discretion, we will affirm the
order.
I. FACTUAL BACKGROUND1
A. LOS GATOS VEHICLE TAMPERING
Defendant was a passenger in a pickup truck stopped by Los Gatos police on
October 26, 2012 at around 3:45 a.m. A resident had reported two white men in his
driveway prowling inside his car with flashlights. The resident shouted from his

1
The facts are drawn from police reports in the trial court’s file. The parties
stipulated that the reports contained a factual basis for defendant’s plea, and they relied
on the reports in the restitution hearings.
bedroom window at the men who fled in a white Chevy truck. Police spotted the truck at
the end of the reporting party’s street. The driver, Scott Wright, told police that he and
defendant were from Concord and were lost. The men denied entering any car, but they
and the truck were positively identified by the reporting party.
Two working flashlights were located in the truck. Defendant had a backpack
containing a Blackberry cellular phone, a Toshiba laptop, a password protected Kindle
Fire, a Sony Cybershot camera, and $1,872 in cash. Police verified that the Blackberry
had been stolen in a Danville automobile burglary the previous day. More than $1,900 in
one hundred dollar and twenty dollar bills was found in the driver’s door pocket and the
console area, and Wright was found to have four grams of methamphetamine in his pants.
B. DANVILLE AUTOMOBILE BURGLARY
On October 25, a Contra Costa County sheriff’s deputy responded to an
automobile burglary at a residential open house in Danville. The victim arrived at the
property at 11:30 a.m. and at about 12:45 p.m. discovered her car window shattered and
her purse stolen from under the driver’s seat. The purse contained a Blackberry cell
phone, a wallet with cash and bank cards, jewelry, and makeup.
The victim’s debit card was used shortly after the burglary in Walnut Creek and
Concord to make five purchases and two ATM cash withdrawals. The deputy obtained
photographs of two men using the debit card at a store and video footage of one of those
men using the card at an ATM. The deputy also obtained driver’s license photographs
for defendant and Wright. From the photographs and video he was unable to determine
whether defendant or Wright had used the victim’s debit card.
II. TRIAL COURT PROCEEDINGS
The Santa Clara County District Attorney charged defendant and Wright with
the Los Gatos vehicle tampering. (Veh. Code, § 10852; count 3.) The complaint also
charged defendant with receiving stolen property—the Blackberry cell phone

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(Penal Code, § 496, subd. (a); count 1)2, and it alleged that defendant had a prior felony
conviction for access card forgery (§§ 667.5, subd. (b); 484f, subd. (b)) in Stanislaus
County.
Defendant pleaded no contest to both counts, and the prior conviction allegation
was dismissed on the prosecutor’s motion because of “some confusion as to where [it]
came from.” Defendant acknowledged on the waiver of rights form that “the Court will
order me to pay restitution to any victim(s) for his/her/their losses.” Imposition of
sentence was suspended for three years and defendant was placed on formal probation.
Among other conditions, he was ordered to serve six months in county jail and to pay
various fines and fees.
The probation department contacted the victim of the Danville automobile
burglary and invited her to file a claim for uncompensated financial loss. In response, the
victim sought $1,963.25, which included compensation for a purse ($69), a Louis Vuitton
wallet ($875), diamond earrings ($786.75), makeup ($112.50), and $120 cash.3
Defendant objected to the restitution sought, and he argued at two hearings that the
restitution was not authorized by section 1203.1 and violated due process. The trial court
granted the victim’s request in full. In its written order, the court found the request to be
supported and reasonable, noting that defendant had failed to present any evidence that
the claimed loss was incorrect or unreasonable. The court ruled that the request was
reasonably related to defendant’s convictions, and that defendant’s possession of the
stolen Blackberry in Los Gatos gave rise to the inference that he had taken the Blackberry
and other items from the victim’s car the previous day. The court also found the
restitution award would deter defendant’s future criminality.

2
Undesignated statutory references are to the Penal Code. Undesignated
subdivisions are to section 1203.1.
3
The victim did not seek compensation for the Blackberry or for the debit card
transactions because police had returned her Blackberry and her bank had reimbursed her
for the unauthorized transactions.
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 III. DISCUSSION
A. LEGAL PRINCIPLES
Section 1203.1 gives the trial court broad discretion to impose probation
conditions. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “The court
may impose and require . . . reasonable conditions, as it may determine are fitting and
proper to the end that justice may be done, that amends may 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[.]”
(Subd. (j).) Restitution, like any other probation condition, must be “reasonably related
to the crime of which the defendant was convicted or to future criminality.” (People v.
Lent (1975) 15 Cal.3d 481, 486 (Lent).) Restitution may be ordered even “where the
victim’s loss was not the result of the crime underlying the defendant’s conviction, but
where the court finds such restitution will serve one of the purposes set out in []
subdivision (j).” (Carbajal, at pp. 1121, 1122.) The primary goal of restitution is
rehabilitation. (People v. Goulart (1990) 224 Cal.App.3d 71, 78 (Goulart).) Deterrence
is implicit in the concept of rehabilitation, and courts generally consider restitution to
deter future criminal activity. (Id. at p. 78, fn. 4.)
The amount of restitution must be factually supported and rational. (Carbajal,
supra, 10 Cal.4th at p. 1125.) A defendant is entitled to notice and the opportunity to
controvert the basis for restitution. (Ibid.) The standard of proof used to determine
whether restitution should be ordered and the amount of restitution is preponderance of
the evidence. (People v. Baumann (1985) 176 Cal.App.3d 67, 80 (Baumann).) We
review a restitution order for abuse of discretion. (Carbajal, at p. 1121.)

B. THE LENT TEST—REASONABLE RELATIONSHIP TO DEFENDANT’S
CONVICTION OR FUTURE CRIMINALITY
Defendant argues that an insufficient nexus exists between the victim’s loss and
defendant’s convictions to sustain the restitution order as “reasonably related to the crime

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of which the defendant was convicted or to future criminality.” (Lent, supra, 15 Cal.3d at
p. 486.) In defendant’s view, insufficient evidence establishes his responsibility for the
Danville automobile burglary. Defendant acknowledges that he can be held financially
accountable for uncharged conduct under Carbajal, Lent, and Goulart, but he
distinguishes those cases as involving acts clearly committed by those defendants.
The defendant in Carbajal was convicted of leaving the scene of an accident. The
California Supreme Court upheld a condition requiring restitution for car damage as
reasonably related to the defendant’s conviction and future criminality, where the
defendant never disputed damaging the car. (Carbajal, supra, 10 Cal.4th at pp. 1118–
1119.) In Lent, the defendant was acquitted of one of two theft charges involving
insurance proceeds, but he was ordered to pay restitution based on both. After a lengthy
sentencing hearing, the court was convinced that the defendant had perjured himself at
trial regarding the disposition of funds from the crime of which he had been acquitted and
ordered restitution accordingly. (Lent, supra, 15 Cal.3d at p. 487.) The Lent court
concluded the entire restitution order sufficiently related to the defendant’s conviction
and served to deter future criminality. (Id. at pp. 486–487.) Goulart involved a guilty
plea to one count of interfering with an electricity transmission line in exchange for the
dismissal of several similar charges, all alleged to have occurred in 1988. (Goulart,
supra, 224 Cal.App.3d at pp. 77–78.) Goulart upheld a probation condition requiring the
defendant to pay restitution for energy thefts occurring as far back as 1982,
acknowledging that compensating crime victims is a deterrent to future criminal activity
which is implicit in the concept of rehabilitation. (Id. at p. 78, fn. 4.) The Goulart
defendant unsuccessfully argued that the amount of restitution exceeded the scope of his
Harvey waiver,4 that the court was illegally imposing civil liability in a criminal case, and

4
Under People v. Harvey (1979) 25 Cal.3d 754, 758, absent a contrary agreement
a defendant cannot suffer adverse sentencing consequences based on charges dismissed
by plea agreement.
5
that the means by which the court arrived at the amount of restitution was fundamentally
unfair. (Id. at pp. 79–84.) He did not challenge the sufficiency of the evidence showing
he had tampered with utility meters since 1982. (Id. at p. 79.)
There was strong evidence of culpability in Carbajal, Lent, and Goulart, but we
do not read those cases as requiring more than a preponderance of evidence supporting a
reasonable relationship between a restitution order and a defendant’s conviction or future
criminality. (Baumann, supra, 176 Cal.App.3d at p. 80.) Here defendant was caught
attempting to steal from a vehicle within 15 hours after the Danville automobile burglary
while in possession of a host of electronic devices, including the victim’s cell phone.
Those facts connect defendant to the Danville car burglary sufficiently to supply a
reasonable nexus between defendant’s conviction and the victim’s loss. The restitution
order also promotes rehabilitation by deterring defendant from committing car burglaries
and from possessing stolen property. (Lent, supra, 15 Cal.3d at p. 486; Goulart, supra,
224 Cal.App.3d at p. 78, fn. 4.)
The cases defendant cites on this point are distinguishable. In People v. Richards
(1976) 17 Cal.3d 614, the California Supreme Court struck a restitution condition for a
theft of which the defendant had been acquitted. The defendant had been charged with
two counts of grand theft involving mining claim sales, and the jury found him guilty of
one count but not guilty of the second unrelated transaction. (Id. at p. 617.) In striking
the restitution, the Richards court explained that the trial court had based the order on an
erroneous belief that it could determine civil liability and impose restitution to satisfy that
liability. (Id. at pp. 620, 623.)
Richards is distinguishable as there was no indication in that case that the
restitution served any purpose other than to satisfy a civil debt. Here, in contrast, the
record shows that the condition was imposed “to reform and rehabilitate the [defendant]
whose [convictions] constituted [] public offense[s] ‘prosecuted in the name of the people

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of the state of California … .’ (Pen. Code, § 684.)” (Carbajal, supra, 10 Cal.4th at
p. 1126, fn. 13.)
The defendant in People v. Scroggins (1987) 191 Cal.App.3d 502 was convicted
of receiving stolen property from a single burglary, but he was ordered to pay restitution
to victims of other burglaries in the same apartment complex. In striking the restitution
condition, the Scroggins court observed that the trial court had not concluded, nor could it
have, that the defendant was responsible for the other burglaries. (Id. at p. 506.) Here,
defendant was ordered to pay restitution not for unrelated burglaries, but for the same
burglary in which the Blackberry in his possession was taken. Further, the trial court
found it was more likely than not that defendant was responsible for the Danville car
burglary, and that finding is supported by the record.
In In re Maxwell C. (1984) 159 Cal.App.3d 263 the court struck a restitution
condition requiring a juvenile, who had pleaded guilty to possession of a stolen car
stereo, to pay restitution for damage to the stereo and the car. The trial court disbelieved
the juvenile, who denied responsibility for the burglary. (Id. at p. 265.) The appellate
court reversed the restitution order for several reasons, including the absence of evidence
to conclude that the minor had committed burglary or vandalism. (Id. at p. 266.) Unlike
In re Maxwell C., here evidence supports the trial court’s inference that defendant was
involved in the Danville car burglary and thus responsible for the victim’s loss.
In People v. Holmberg (2011) 195 Cal.App.4th 1310 the defendant pleaded guilty
to possession of stolen property after police recovered from the defendant’s home several
computers, hard drives, and related equipment stolen in commercial burglaries. As
relevant to this case, the Holmberg court struck from the $18,072 award the value of two
missing Ethernet cables because no evidence supported the prosecutor’s argument that
whoever brought the stolen computers to defendant’s home must have also brought the
cables. (Id. at p. 1325.) Holmberg is inapposite because in that case the challenged
restitution was based solely on the defendant’s possession of the stolen property and not
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on the theory that the defendant was actually responsible for the burglaries. (Id. at
p. 1324.)
In People v. Rivera (1989) 212 Cal.App.3d 1153 the defendant pleaded guilty to a
burglary in which he was caught stealing tools from one victim’s garage. Police found
tools in the defendant’s possession belonging to a second victim. All tools in the
defendant’s possession were returned, but defendant was ordered to pay the second
victim $1,200 for other tools which were not recovered. (Id. at p. 1156.) Although the
defendant had admitted to a probation officer “his responsibility in the theft of property”
from both victims, the appellate court struck the $1,200 restitution condition because the
defendant had not expressly admitted to participating in the theft of the second victim’s
tools. (Id. at p. 1162.) Rivera is distinguishable because the prosecutor there was relying
solely on the defendant’s incomplete admission in a probation report, not circumstantial
evidence as shown by the totality of the circumstances, to establish the requisite nexus to
the uncharged conduct.
On this unrebutted record the trial court did not abuse its discretion by finding
defendant accountable to the victim of the Danville car burglary, and by finding that the
restitution related to defendant’s conviction and to deterring future criminality.
C. DUE PROCESS
Defendant argues that the restitution condition violates due process because the
inference that he committed the Danville car burglary lacked an evidentiary basis. Due
process requires that a sentencing court not consider evidence which is vague or
inaccurate. (Goulart, supra, 224 Cal.App.3d at p. 83.) Here the trial court’s inference
was drawn from specific undisputed facts—defendant was in possession of the stolen
Blackberry when, within 15 hours of the Danville car burglary in which it was taken, he
was observed rummaging through a car in a residential neighborhood. Defendant was
provided the opportunity to present evidence rebutting his liability and he chose not to.
(Baumann, supra, 176 Cal.App.3d at pp. 79–80.) No due process violation occurred.
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 IV. DISPOSITION
The restitution order is affirmed.

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 ____________________________________
Grover, J.

WE CONCUR:

____________________________
Rushing, P.J.

____________________________
Elia, J.

PEOPLE v WHITEMAN
H041662