THE PEOPLE, Plаintiff and Respondent, v. WESLEY CISIO RICHARDS, Defendant and Appellant.
Crim. No. 17985
Supreme Court of California
July 30, 1976
17 Cal. 3d 614
Anthony P. David, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, Robert R. Granucci and David Schneller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOSK, J.— 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.
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 accusаtion, 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 charаcterization 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
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
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; People v. Davis (1954) 43 Cal.2d 661, 671-672.) 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, 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
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 оf criminal charges in the Ward transaction.2
Trial courts are granted broad discretion under
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.
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
The major goal of
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 appropriatе 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, 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
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 never received a trial on the debt issue. At his criminal trial, defendant was required to raise a reasonable doubt regarding any of the elements of theft. No duty wаs placed on him, nor could it be in that proceeding, to prove that he was not civilly liable. Any legal conclusion that defendant owed money, therefore, is not only insupportable, it is reached here in the absence of due process rights assured to every litigant.
Even if it can be implied that defendant owes money to Ward, the conclusion does not necessarily follow that he is civilly liable. Civil law, of course, provides for priorities among creditors and rehabilitation of debtors in many cases. No evidence could have been introduced in the criminal trial herein as to whether defendant hаd declared bankruptcy or other creditors had asserted monetary claims against him superior to that of Ward. Thus “Restitution or reparation is not a substitute for a civil action to recover damages” (People v. Grago (1960) 24 Misc.2d 739), and a defendant‘s duty of restitution cannot be predicated merely on a purported debt.4
However, as noted above, California courts have approved the imposition for rehabilitative purposes of restitution not limited to the loss caused by the offense of which the defendant was convicted. The
It is generally difficult to determine, as is required by
If a restitution order is to redirect a defendant to acceptance of responsibility for the crime he has committed, the order must be directly related to that crime. (People v. Dominguez (1967) supra, 256 Cal.App.2d at p. 628.) It is obvious that unless the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which he was convicted, this salutary rehabilitative effect cannot take place.5 No rehabilitative purpose can be served by forcing a person to confront tendencies which differ from those which induced his crime. For example, in People v. Williams (1966) supra, 247 Cal.App.2d 394, the defendant assaulted a store proprietor who refused to honor his Diners Club credit card. The Court of Appeal struck down a restitution order requiring the defendant to repay Diners Club for money owed on the credit card. The purpose of restitution in an assault case is to make the defendаnt accept responsibility for and thus curb his violent tendencies, a purpose that would have justified requiring restitution to the assault victim. But restitution to Diners Club would, at best, cause the defendant to confront his inclination towards fiscal irresponsibility, which is neither related to violence nor criminally punishable in California.6
While the present case seems at first glance to involve facts comparable to Lent, closer analysis reveals that the restitution order here is more akin to that disapproved in Williams. As in Williams, there was no showing that making defendant pay restitution to Ward would in any way rehabilitate him for his proved criminal behavior toward Mrs. Garbuio. After the jury exonerated him of criminal conduct towards Ward, the judge made no specific finding that defendant‘s behavior in the Ward transaction or his testimony regarding it showed a dishonest state of mind comparable to that involved in the charge of which he was convicted. The judge merely declared, “I know from the evidence presented during the course of the trial that Mr. and Mrs. Ward received nothing of value from the defendant as a result of the purchase made, and they were obviously relieved of some nine hundred plus dollars which has not yet been recovered. ... I think very definitely that Mr. Richards should make restitution to Mr. and Mrs. Ward because he got their money.” In other words, the court erroneously believed that restitution could be imposed merely to collect the purported debt to Ward.
It is entirely irrelevant that the burden of proof in a criminal case differs from the burden in a civil case. This is not a civil case. It is a criminal proceeding in which the defendant, protecting his liberty, will be acquitted if he raises a reasonable doubt of his guilt. In the course of convincing a jury to doubt his guilt on one charge, a defendant should not have the additional task of persuading the judge regarding the subsequent sentencing disposition on other charges.
The order admitting defendant to probation on condition that he make restitution to Ward is reversed. As the court has already determined that defendant is a proper candidate for probation, the case is remanded with directions to grant probation on reasonable conditions.
Wright, C. J., Tobriner, J., and Sullivan, J., concurred.
CLARK, J., Dissenting.— I agree with the majority insofar as they reiterаte the following well-established principles:
Trial courts have broad discretion in creating conditions to probation.
The bounds of this discretion are set forth in
Accordingly, the scope of appellate review of a probatiоn condition is limited to determining whether it serves a purpose specified in
I disagree with the majority insofar as they pay mere lip service to these principles while emasculating the trial court‘s discretion by holding that “unless the act for which the defendant is ordered to make restitution was committed with the same state of mind as the offense of which the defendant was convicted,” restitution will serve no rehabilitative purpose. (Ante, p. 622.)
The sole authority for this novel proposition is a student note in a law review. (Note, Use of Restitution in the Criminal Process: People v. Miller (1969) 16 U.C.L.A.L.Rev. 456, 465.)1 The irony in the majority‘s adoption of the proposition is that the author advanced it, not as an interpretation of
The student author was of the opinion that the Legislature in enacting
The novelty of this proposition is demonstrated by the majority‘s failure to articulate it in People v. Lent (1975) 15 Cal.3d 481, although Lent was argued the same day as this case and presented the same question—whether probation may be conditioned upon restitution of sums involved in charges of which the defendant has been acquitted. “Ordinarily,” the majority held, “such result would preclude inclusion of that item in the restitution order.” (15 Cal.3d at p. 487.) However, Lent was an exception to the rule, the majority concluded, because “additional circumstances were developed in the unusually prоlonged probation hearing conducted by the meticulous trial judge.” (Id.) Apparently the majority had not yet read the student note because they give no indication that at the conclusion of the unusually prolonged hearing the trial judge found, or was required to find, that the theft of which Lent was acquitted was committed with the “same state of mind” as the theft of which he was convicted.2
Even more significant than the majority‘s failure in Lent to state and adopt the student author‘s proposal is their repeated citation with
The probationer in Miller operated a general contracting company which was declared bankrupt prior to the institution of the criminal proceedings. He wаs convicted of defrauding a couple named Keefe of $821 by accepting an advance payment for work he failed to perform. Although it limited the restitutionary condition of probation to the loss suffered by the Keefes, the court expressed hope that Miller would eventually reimburse the other creditors injured by his business operations. Eight months after the original grant of probation, the probation officer submitted memoranda informing the court that the Keefes’ actual loss was over $2,000; that others had claims against Miller similar to the Keefes‘, a common factor of the claims being the acceptance of money for work not performed; that the other claimants were listed and considered in the bankruptcy proceeding; and that the claims for restitution, including the Keefes‘, totalled $8,900.
The probation officer concluded by asking the court whether it wished to hear a petition to modify probation to determine the amount of restitution. The court responded informally that no hearing was necessary. Based on the memoranda, without any formal proceeding, defendant was informed of the increase in the amount of restitution. (256 Cal.App.2d at pp. 350-351.)
Affirming the order modifying probation, the Court of Appeal stated: “[T]here is no indication that any of the claims other than those of the Keefes were based on criminal conduct, nor is there any showing that they were based on fraudulent representations to the claimants of the sort made to the Keefes, resulting in defendant‘s conviction. Rather they are premised on defendant‘s breaches of construction contracts or on losses occasioned by liens being placed on the claimants’ properties as a result of defendant‘s activities. Nevertheless, defendant‘s conduct toward the other restitution claimants arose out his operation of the same business through which he defrauded the Keefes. In view of the circumstances that this business had been declared bankrupt shortly before the instant criminal proceedings and defendant owed over $10,000 to his creditors, the trial court and the probation office may have concluded that defendant‘s borderline operation of his construction company put him in a situation in which he was likely to engage in fraudulent activities so as to warrant the conclusion that defendant‘s rehabilitation could best be achieved in a context of complete reparation
I heartily concur. And as late as Lent, apparently, so did the majority for they repeatedly cited Miller with approval, distinguishing it as a case involving, not acquittal, but “criminal acts uncharged or untried.” (People v. Lent, supra, 15 Cal.3d at pp. 486-487.) Now, however, because no hearing was conducted there into the question whether the other acts for which the probationer was required to make restitution were committed with the same state of mind as the offense of which he was convicted, Miller is clearly disapproved.
In reaching its conclusion the Miller court stated the standard of review which should be applied in this cаse. “Probation is granted in hope of rehabilitating the defendant and must be conditioned on the realities of the situation, without all of the technical limitations determining the scope of the offense of which defendant was convicted. In determining where to draw the line between what is a reasonable and what is an unreasonable condition, common sense and reason must limit the court‘s discretion. This discretion must not be disturbed unless there has been a manifest abuse.” (256 Cal.App.2d at p. 356.)
No such abuse appears in this case. Both the Ward and the Garbuio transactions involved sales of worthless interests in real estаte located in the same county. Both buyers received documents designated as mining claims and were given quitclaim deeds. Both transactions occurred at the same time and place. Finally, as the trial judge observed, although the evidence fell short of establishing criminality in the Ward transaction, it revealed that defendant owed the money and that allowing him to avoid this debt would be unjust. Under these circumstances, the trial court acted well within its discretion in determining that restitution to Ward would contribute to defendant‘s rehabilitation.
I would affirm the order admitting defendant to probation on condition that he make restitution tо Ward.
McComb, J., and Richardson, J., concurred.