Filed 2/4/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B286062
(Super. Ct. No. 15F-11592)
Plaintiff and Respondent, (San Luis Obispo County)
v.
BRET STEPHEN LANDEN,
Defendant and Appellant.
The victim of this crime is a local school district. The
defendant is ordered to pay restitution to the school district.
Some of the loss the school district suffered was reimbursed by
the state.
Because of the state’s inextricable relationship to the school
district, the state is also a direct victim of the defendant’s crime
and is entitled to restitution. (Butt v. State of California (1992) 4
Cal.4th 668, 680.) The amount of restitution the defendant must
pay does not change. Only the party to whom some of that
restitution must be paid changes. However reprehensible a
defendant’s conduct, restitution due the victim should not exceed
the loss suffered.
Bret Stephen Landen appeals a judgment following his no
contest plea to making threats to use a weapon of mass
destruction (Pen. Code, § 11418.5, subd. (a))1 and making
criminal threats (§ 422, subd. (a)). The trial court placed him on
five years of supervised probation. After a restitution hearing, it
ordered him to pay the Atascadero Unified School District
(District) $235,341.17 as restitution. We conclude, among other
things, that the court should reduce the amount of restitution to
the District by the amount of reimbursement the District
received from the State of California (State) ($68,722.56) for
average daily attendance (ADA) funds. We reverse. On remand,
the trial court shall order Landen to pay restitution to the State
in the amount of $68,722.56. In all other respects, we affirm.
FACTS
During June or July 2015, Landen stole the keys to the San
Gabriel Elementary School, a school which is part of the District.
On September 11, 2015, Landen locked the entrances to
that school and placed a jar containing a liquid mixture of
“sodium and cyanide” three feet off the ground, near a play area
where it was “easy for children to reach it.” He left black
envelopes for the teachers of the school with the following note
inside:
“I want to play a game. Inside the package before you hold
[sic] a key to the classroom. However, there is a catch. Three of
your colleagues have the unfortunate situation where their keys
are switched. Furthermore, an additional four teachers will have
to retrieve four keys that will unlock the corresponding pad locks
that currently deny the children’s entrance to the school. In
order to further the safety of your children, four of you need to
1 All statutory references are to the Penal Code.
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obtain the keys that are located in a jar, connected to the fence,
adjacent to the play structure. If these tasks are not completed
by 8:00 am, there will be consequences to follow, possibly
affecting the children. Make your choice.”
A “digital recorder” was near the glass jar containing the
cyanide and sodium liquid. Landen left a note close to the jar,
which read, “Congratulations, you have found the jar that
contains the keys. As you can see, there is a liquid that
surrounds the keys. Be aware that the solution is a combination
of liquids that release a very poisonous cyanide gas. Also, the
liquid happens to be a relatively strong acid.”
Landen left a note on the digital recorder stating, “Play
me.” In a digital recording in a “disguised voice,” Landen said,
“Hello there. Most of you are probably wondering about the
invitation at your doors. This is a game to test your ability of
how far each and every one of you is willing to go in order to
secure the safety of your children. As you can see, there are not
four keys, but five. There is an additional lock that must be
unlatched before your time is up. Get to it. The clock is running
out.”
The police investigated and discovered that the items used
in the crime were not purchased locally. Law enforcement was
eventually able to trace these items to purchases made by
Landen on Amazon.
Landen admitted he committed the offense. He said that
“he felt good carrying out his plot and that he experienced an
overwhelming sense of excitement.” He said that “[h]e wanted
the teachers to feel fear.”
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The probation department recommended that as a result of
Landen’s actions he should pay restitution to the District in the
amount of $456,163.09.
The trial court held a restitution hearing. Tom Butler, the
District’s superintendent, Jackie Martin, a District assistant
superintendent, and Curt Eichberger, the District’s assistant
superintendent for human resources, testified about the District’s
financial expenses and losses incurred as a result of Landen’s
actions. Butler said Landen’s acts caused a “direct impact on the
financial solvency” of the District. The San Gabriel school had to
be closed for two weeks. Students and staff were transported to
other District schools. There was a “[l]oss of revenue for reduced
[school] attendance district wide.” There were increased labor,
overtime, construction and security costs because of the
September 11, 2015, incident.
The trial court found the District was a direct victim and
Landen’s threats were directed at District staff and caused “a
significant sense of terror” for “parents and community
members.” It said restitution serves the “probationary goal of
rehabilitating the defendant” and making him “confront . . . the
harm his actions have caused.” As a result of his crime, the San
Gabriel school had to be closed and “taken over” by law
enforcement “as a crime scene.” The District incurred substantial
costs for chemical testing and security costs. Students had to be
“relocated to other elementary school campuses.”
The trial court ordered Landen to pay restitution to the
District in the total amount of $235,341.17. In reaching this
amount, it found nine restitution categories were reasonable,
which included: 1) $ 2,778.88 to rekey classrooms at San Gabriel;
2) $21,728.22 for security costs to supervise or monitor the school;
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3) $11,933.87 for relocation expenses; 4) $23,810.23 for additional
costs for ongoing construction due to security concerns; 5)
$19,044.14 for administrative costs “to stabilize the work force
over the weekend and engage in relocating a school within 48
hours without having access to the school”; 6) $94,669 for losses
in ADA revenue for San Gabriel and other District schools due to
school children being relocated and parents fears about school
safety; 7) $32,585.75 for chemical testing; 8) $8,245.16 for
“classroom lockdown kits” distributed “across the school District”;
and 9) $20,545.92 for a “visitor software system.”
The trial court also found that the District had received
“partial reimbursement” for the loss of ADA funding from the
State in the amount of $68,722.56.
DISCUSSION
The Amount Ordered as Restitution to the District
Landen contends the trial court should not have ordered
restitution to the District for expenses not directly related to the
incident at the San Gabriel school as a condition of probation.
We review the trial court’s conditions of probation for abuse
of discretion. (People v. Moran (2016) 1 Cal.5th 398, 403.) “[A]
reviewing court will disturb the trial court’s decision to impose a
particular condition of probation only if, under all the
circumstances, that choice is arbitrary and capricious and is
wholly unreasonable.” (Ibid.)
“In granting probation, courts have broad discretion to
impose conditions to foster rehabilitation and to protect public
safety pursuant to Penal Code section 1203.1.” (People v.
Carbajal (1995) 10 Cal.4th 1114, 1120.) “Restitution has long
been considered a valid condition of probation.” (Id. at p. 1121.)
“[A]n order for restitution, which attempts to make a victim
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whole, ‘has generally been deemed a deterrent to future
criminality’. . . .” (Id. at p. 1123.) “There is no requirement the
restitution order be limited to the exact amount of the loss in
which the defendant is actually found culpable, nor is there any
requirement the order reflect the amount of damages that might
be recoverable in a civil action.” (Ibid.)
The trial court’s discretion in ordering restitution is broad,
but not unlimited. (People v. Carbajal, supra, 10 Cal.4th at
p. 1121.) It may not order excessive restitution amounting to an
unreasonable windfall for a victim. (In re Anthony M. (2007) 156
Cal.App.4th 1010, 1017.) It should compensate a victim for
actual losses, but never overcompensate a victim. (People v.
Chappelone (2010) 183 Cal.App.4th 1159, 1172.)
Landen claims he did not cause “physical harm” to any
“school property” or any “person present” and the District is not a
“direct victim.” He targeted the San Gabriel school, not the
District. He contends the District sought restitution for security
and other costs unrelated to the San Gabriel school.
But the San Gabriel school is part of the District and
Landen minimizes the impact of his actions on the District. He
made criminal threats and used a deadly substance – cyanide.
Law enforcement was not able to immediately identify a suspect.
A school had to be closed. Landen targeted District teachers and
the District believed this was not an isolated incident. Keys and
cyanide reflected careful planning. This was not a harmless
prank.
Landen terrorized District educators on September 11, the
anniversary of the World Trade Center attack. District
administrators believed the District had been targeted by an
unknown terrorist. They incurred substantial costs by taking
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steps consistent with their duty to protect the District’s students
and faculty. (Dailey v. Los Angeles Unified School Dist. (1970) 2
Cal.3d 741, 747.) Butler said Landen’s actions caused a “direct”
impact on the District’s “financial solvency.”
Lockdown Kits and the Visitor Software Program
Landen contends restitution for “lockdown kits for all
[District] schools” and the “visitor software program” is not
authorized. He claims restitution is only proper for the loss of
ADA revenue at the San Gabriel school, not other District
schools. He argues the order to pay $23,810.23 for increased
construction costs at the San Gabriel school was improper.
Eichberger testified the District’s “Safety Committee”
determined lockdown kits for students and a software system to
identify and screen all school visitors were necessary for the
District’s schools. Those measures had not been instituted before
the September 11, 2015, incident. Butler said various security
measures and costs “would not have been necessary if it were not
for the horrific event at San Gabriel Elementary School.”
Teachers whom Landen targeted at the San Gabriel school
had to be transferred to other District schools when the San
Gabriel school was closed for chemical testing and a police
investigation. Butler said law enforcement had obtained
evidence showing a threat “to other students in the District.”
Landen had shown his ability and intent to enter a District
school to target teachers. He had placed a dangerous substance
within the reach of children. The District had a duty to protect
its teachers and students. (Dailey v. Los Angeles Unified School
Dist., supra, 2 Cal.3d at p. 747.) The trial court reasonably
inferred these safety measures were the result of, and reasonably
related to, Landen’s crimes. The restitution order was well
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within the trial court’s discretion. (People v. Tarris (2009) 180
Cal.App.4th 612, 624-626.)
Increased Construction Costs
The trial court found $23,810.23 in increased construction
costs at the San Gabriel school was “reasonably related to Mr.
Landen’s crimes.” It did not err. Butler testified there was an
ongoing construction project at the school when it had to be
closed because of Landen’s threats. The suspect had not been
apprehended and there was a belief that a “trades person
working on [that project]” may have been responsible for the
September 11, 2015, incident. The District decided to have
construction proceed at night “when students were not there.” It
was concerned for the safety of its students. (Dailey v. Los
Angeles Unified School Dist., supra, 2 Cal.3d at p. 747.) It
incurred “swing shift employment” costs for this reason. The
court found that given “the trauma” Landen caused, the decision
to incur this special labor expense was appropriate.
The trial court also found this “would aid in the
rehabilitation of Mr. Landen under the total circumstances of
this case.” Landen has not shown error. The court’s concern that
Landen needed to understand the consequences of his actions
was well justified. After his arrest, Landen said that “he felt
good carrying out his plot.” A defendant must “ ‘ “confront, in
concrete terms, the harm his actions have caused.” ’ ” (People v.
Anderson (2010) 50 Cal.4th 19, 27.) This is a proper goal of
probation restitution. (People v. Carbajal, supra, 10 Cal.4th at
p. 1123.)
Loss of Revenue for District ADA Funds
The closing of the San Gabriel school and the transfer of its
students and faculty to other District schools produced a climate
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of fear throughout the District. Many parents decided to keep
their children out of District schools. Martin testified the District
receives State money based on the ADA. Butler said there was “a
dramatic decrease in attendance across [their] school district,”
causing a loss of ADA revenue in the amount of $94,669. He said
this was a “direct cost associated with the incident on September
11, 2015.” The District’s ADA loss of revenue was reasonably
related to Landen’s crimes.
But as Landen correctly notes, the trial court also found the
District received “partial reimbursement” from the State for the
loss of ADA funding in the amount of $68,722.56. The court did
not subtract this amount from its restitution order.
Martin testified the District applied for an ADA “waiver,”
the State granted it and recalculated ADA funding. The State
then sent $68,722.56 in ADA funds to the District. Landen notes
the trial court incorrectly calculated the District’s ADA loss.
That loss was not $94,669; it was only $25,946.44 (the difference
between $94,669 and the $68,722.56 ADA funds the District
actually received). The court has broad discretion to determine
restitution as a probation condition. (People v. Carbajal, supra,
10 Cal.4th at p. 1121.) In the ordinary case, the court abuses its
discretion if it orders restitution at an amount several times
higher than the victim’s actual loss. (People v. Whisenand (1995)
37 Cal.App.4th 1383, 1391; People v. Baumann (1985) 176
Cal.App.3d 67, 76.) But such an abuse will not occur here.
Restitution to the State
The trial court ordered restitution to the District in the
amount of $68,722.56 it received from the State to reimburse it
for its loss of ADA funding. We asked for additional briefing on
whether the trial court has authority to now order Landen to pay
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restitution to the State for that $68,722.56 amount. Counsel for
the parties cited inapplicable authority, mostly involving victim
restitution relating to insurance policies.
We conclude the trial court has authority to order
restitution to the State. Why? Because the State is a direct
victim of defendant’s crime. “Public education is an obligation
which the State assumed by the adoption of the Constitution.
(San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d
937, 951-952 [92 Cal.Rptr. 309, 479 P.2d 669]; Piper v. Big Pine
School Dist. (1924) 193 Cal. 664, 669 [226 P. 926].) The system of
public schools, although administered through local districts
created by the Legislature, is ‘one system . . . applicable to all the
common schools . . . .’ (Kennedy v. Miller (1893) 97 Cal. 429, 432
[32 P. 558], italics in original.)" (Butt v. State of California,
supra, 4 Cal.4th at p. 680.) Under the broad provisions of section
1203.1, the court may order the defendant to pay victim
restitution.
The restitution statutes authorize trial courts to “retain
jurisdiction” for the purpose of “imposing or modifying
restitution” so that eligible victims will receive the restitution to
which they are entitled. (People v. Bufford (2007) 146
Cal.App.4th 966.) “The government may be the beneficiary of . . .
reimbursement if it has incurred actual loss due to the crime.”
(People v. Tarris, supra, 180 Cal.App.4th at p. 622.)
Landen’s interruption of school attendance was a crime
affecting the District and the State. The State is responsible for
maintaining adequate educational funding based on student ADA
figures. (Butt v. State of California, supra, 4 Cal.4th at p. 704;
Fullerton Union High School District v. Riles (1983) 139
Cal.App.3d 369, 373.)
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Where there is a drop in attendance due to a wrongdoer’s
criminal act which creates a funding crisis, the State is a victim.
The State is responsible for obtaining the funds necessary to
address the crisis and support the educational process. It has the
“plenary constitutional responsibility for operation of the common
school system.” (Butt v. State of California, supra, 4 Cal.4th at
p. 704.) Because the District was unable to financially meet its
responsibility, the State paid these funds which reduced its State
ADA funding reserve. An order requiring Landen to pay
restitution to the State falls within the trial court’s discretion to
order restitution as a probation condition to require the
defendant to face the consequences of his criminal acts.
DISPOSITION
The portion of the restitution order that ordered Landen to
reimburse the District for $68,722.56 for partial ADA
reimbursement it received from the State is reversed. On
remand, the trial court shall order Landen to pay restitution to
the State for that $68,722.56 amount. In all other respects, the
order is affirmed.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Jolene Larimore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Colleen M. Tiedemann, Viet H.
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
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