People v. Miles CA3 ( 2022 )

Filed 2/18/22 P. v. Miles CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C092292
Plaintiff and Respondent, (Super. Ct. No. 19CF05982 &
19CF07587)
v.
CHRISTOPHER RAY MILES,
Defendant and Appellant.
Defendant, Christopher Ray Miles, moved to exclude a video of him confessing to
ownership of an eyedropper bottle containing heroin. He claims the correctional deputy
obtained his confession in violation of his Miranda1 rights. After the trial court denied
his motion to suppress his confession, the jury found defendant guilty of possessing a
controlled substance in a custodial facility. On appeal, defendant claims the trial court
1 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
1
erred when it denied his motion. Defendant also argues the trial court erred in ordering
restitution in this case based on his actions in a second dismissed case because the trial
court never obtained a valid Harvey2 waiver from him when it dismissed that case. We
shall strike the restitution order and affirm the judgment.
FACTS AND PROCEDURE
Facts Relevant to Grand Theft Case (Case No. 19CF05982)
Defendant ripped phone lines down by hooking them to his vehicle and driving
down the road. He loaded the wire from the phone lines into the trunk of his vehicle and
drove away. Butte County Sherriff’s Officers found 60 feet of wire in his trunk. Officers
also found gloves and bolt cutters. An AT&T representative estimated the cost of the
wire was over $1,000.
Defendant was charged with grand theft of personal property (Pen. Code, § 487,
subd.(a))3 and vandalism causing over $400 in damage (§ 594, sub. (a)(2)). Defendant
pleaded no contest to the charge of grand theft and the vandalism count was dismissed
with a Harvey waiver (§ 487, subd. (g).). This entire case was ultimately dismissed upon
the prosecution’s motion with a Harvey waiver. The trial court, however, did not take a
Harvey waiver from the defendant.
Facts Relevant to Possession Case (Case No. 19CF07587)
Defendant was incarcerated in the Butte County Jail in a cell with Robert Kongle.
On September 19, 2019, Correctional Deputy Dylan Pannell entered their cell, ordered
them to place their hands behind their back, put them in handcuffs and escorted them
from the cell. Correctional Deputy Pannell secured the cell and conducted a visual strip
search of defendant and found nothing. After he searched defendant, Correctional
2 People v. Harvey (1979) 25 Cal.3d 754 (Harvey)
3 Undesignated statutory references are to the Penal Code.
2
Deputy Pannell secured him in an interview room. Other correctional staff searched
Kongle and found nothing.
Correctional Deputy Pannell returned to the cell and searched the two drawers in
the cell. Neither drawer had a name tag nor a number assignment on the outside. The
drawers are not assigned by the facility. The first drawer contained legal mail and
commissary documents labeled for Kongle. It contained nothing with defendant’s name
on it. Based on this, and because Kongle had no other place to put his belongings,
Correctional Deputy Pannell concluded this first drawer belonged to Kongle.
The second drawer contained an eyedropper bottle and no other items of note.
The contents of the eyedropper bottle presumptively tested positive for heroin. At trial,
Correctional Deputy Pannell testified he did not recall any specific other items in the
second drawer or anything with defendant’s name on it.
Correctional Deputy Pannell testified inmates do not often put things in other
inmate’s drawers. Based on the location of the eyedropper bottle, the items in the first
drawer with Kongle’s name on them, and the deputy’s knowledge of prison politics,
Correctional Deputy Pannell concluded the eyedropper bottle belonged to defendant.
After the search, Correctional Deputy Pannell took a 10-second video of his
interaction with the defendant on his body camera. Correctional Deputy Pannell held up
the eyedropper bottle in his hand and asked defendant, “Seen this before?” Defendant
nodded in the affirmative. Correctional Deputy Pannell asked, “Is it yours?” Defendant
again nodded in the affirmative.
The jury found defendant guilty of possession of a controlled substance or
paraphernalia in a custodial facility. The trial court sentenced defendant to six years in
state prison. Over defendant’s objection, the court imposed restitution in the amount of
$1,465.48 in favor of AT&T for the stolen wire in the dismissed case.
3
Motion to Suppress
Prior to trial, Defendant moved to suppress the contents of two videos taken of
him by Correctional Deputy Pannell. The trial court reviewed the two videos. The trial
court also presided over the preliminary hearing in this case, which was the only evidence
available to the court at the time defendant made the motion.
At the preliminary hearing, Correctional Deputy Pannell testified consistent with
his trial testimony that he removed defendant and Kongle from their cell and discovered
nothing upon searching them. During his search of their cell, Correctional Deputy
Pannell found the eyedropper bottle in what he concluded was defendant’s drawer.
Correctional Deputy Pannell initially testified at the preliminary hearing he gave
defendant Miranda warnings before he interviewed him. On cross-examination,
however, he testified, “I Mirandized him. He stated he knew his Miranda, that he’s been
read his Miranda multiple times.” Correctional Deputy Pannell alternatively testified, he
was not sure he gave defendant Miranda rights, he did not recall whether he gave them,
but his report reflected what he remembered. His report stated he had asked defendant if
he had been read his Miranda rights and understood them. 4
Following this search, Correctional Deputy Pannell engaged in a discussion with
defendant which was recorded on his body camera. That video is approximately one
minute and 48 seconds long and was not presented to the jury. That video shows the
following interaction:
“[Correctional Deputy Pannell]: Do you understand them?
“Do I need to read them to you for you to understand them or do you have a basic
understanding of them?
“[Defendant]: I have an understanding.
4At trial, Correctional Deputy Pannell testified he believed he gave defendant his
Miranda rights, but not verbatim.
4
“[Correctional Deputy Pannell]: Alright. Um . Do you want to know why I am
talking to you all official like?
“[Defendant]: (unintelligible) . . . Yea.
“[Correctional Deputy Pannell]: So when you came in we talked, we did your
little classification interview. We talked about detoxing a little bit. Um, so far
you haven’t been detoxing so that’s a good sign. Right?
“Um, the reason for that is because you brought in a controlled substance into the
facility. Earlier you stated you don’t know Gregory Sterling but he put money on
your books. Multiple inmates who have been trying to get you money have been
talking on the phones. Talking about buying heroin from you. We already found
heroin in D pod. Um, so you know what I mean.
“It’s . . . if there is more . . . if there is more to the story feel free to clue me in but
as of right now everyone is kind of pointing at you but you’re also from another
county so maybe it’s because you’re from another area.
“[Defendant]: I tried to bail out, but I don’t know.
“[Correctional Deputy Pannell]: You have the money or are you trying to put it
together?
“[Defendant]: I’m trying to put it together.
“[Correctional Deputy Pannell]: That’s a good way to do it. Um, just . . . are you
done now? Is it . . . is it gone? Are we good? Or . . . .
“[Defendant]: Pshh . . . um . . . we are good.
“[Correctional Deputy Pannell]: How much did you bring in? Allegedly, a gross
number? What are you working with?
“[Defendant]: I’d rather not say nothing that way no one gets their feelings hurt.
“[Correctional Deputy Pannell]: More than we expect though from what I hear.
“[Defendant]: What’d you expect?
“[Correctional Deputy Pannell]: (Unintelligible).
5
“[Defendant]: (Unintelligible).
“[Correctional Deputy Pannell]: Alright [defendant], you’re good my man.”
During this conversation, defendant was fully dressed, sitting casually on a bench,
and otherwise unrestrained. He slouched against one wall of a small room with his legs
sprawled out. He was looking to his right at Correctional Deputy Pannell. The back of
the room appeared to be a few feet to his left and the wall in front of him appears several
feet away. Defendant has one arm folded across his chest with his other hand up to his
chin.
Shortly after they completed this conversation, Correctional Deputy Pannell
filmed the second, 10-second interaction with the defendant on his body camera that was
played to the jury. This short video contained defendant’s confession of ownership. The
time stamp on this video shows it starts approximately 20 seconds after the first
encounter ended.
In the second video, Correctional Deputy Pannell appears at one end of a wide
hallway and defendant is at the other end. Defendant is holding a tray in one hand and
has his other hand behind his back. There are three other correctional deputies present.
The second correctional deputy is standing near Correctional Deputy Pannell holding a
water bottle and idly observing the scene. A third correctional deputy is standing a few
feet behind the defendant on the other side of a cart of boxes from him and with one hand
in his pocket. A fourth correctional deputy is standing to the left of defendant holding the
door handle to a door labeled with the letter “C” on it.
In his motion, defendant argued he was not properly read his Miranda advisement
prior to the first interrogation, and he invoked his right to remain silent when he replied
to Correctional Deputy Pannell: “I’d rather not say nothing that way no one gets their
feelings hurt.” Defendant asserted the trial court should have excluded the second
statement because it was obtained after he invoked his right to remain silent.
6
The trial court recited a tentative ruling as to the longer video as follows: “I do
not believe given the total circumstances, totality of the circumstances, that the Miranda
advisement was needed; however, I don’t find anything in that video is relevant to the
extent that would be admissible: Talks about [defendant] detoxing, his intake sheet,
about using heroin, talks about selling it. I don’t also see any real admission by him.
There are certain statements that [Correctional] Deputy Pannell makes that he doesn’t
necessarily argue with but also doesn’t necessarily admit. And to the extent that anything
is relevant, I do feel the prejudice would outweigh the probative value.” The trial court
stated it was inclined to admit the shorter video into evidence. After argument on the
motion, the trial court adopted its tentative ruling. The 10-second video was played for
the jury.
DISCUSSION
I
Exclusion of the Video
Defendant argues the trial court should not have admitted the 10-second video
confession depicting him acknowledging his ownership of the eyedropper bottle of heroin
into evidence because Correctional Deputy Pannell obtained it from him after he invoked
his right to remain silent. We disagree.
A. Standard of Review
In reviewing a trial court’s Miranda ruling, we accept the court’s resolution of
disputed facts and inferences and its evaluations of credibility, if supported by substantial
evidence, and we independently determine, from the undisputed facts and facts properly
found by the trial court, whether the challenged statement was illegally obtained.
(People v. Bacon (2010) 50 Cal.4th 1082, 1105.)
The self-incrimination clause of the Fifth Amendment provides that no “person
. . . shall be compelled in any criminal case to be a witness against himself.” (U.S.
Const., 5th Amend.) To protect a suspect’s right against self-incrimination, the United
7
States Supreme Court held in Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706],
“the prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination. By custodial
interrogation, we mean questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of action in any
significant way.” The suspect must be advised, “that he has the right to remain silent,
that his statements can be used against him and that he has a right to consult with or have
an attorney present. (Miranda, at pp. 467-471 [16 L.Ed.2d at pp. 719-722.])” (People v.
Fradiue (2000) 80 Cal.App.4th 15, 19 (Fradiue).)
The evidence whether Correctional Deputy Pannell provided defendant with the
requisite Miranda warnings or merely asked if he understood those rights is conflicting.
On the one hand, Correctional Deputy Pannell’s direct testimony would be substantial
evidence to support a finding by the trial court at the time of the first video, Correctional
Deputy Pannell gave the required Miranda warnings. On the other hand, his testimony
on cross-examination would be substantial evidence to support a finding that Correctional
Deputy Pannell only asked defendant if he knew his rights and the defendant responded
in the affirmative. The trial court found no Miranda warning was required without
specifying why it made that finding.
The Attorney General does not argue Correctional Deputy Pannell gave defendant
appropriate Miranda warnings, what the effect of confirming a defendant knows his
rights means in this circumstance, or whether there was a waiver in this case. Instead, the
Attorney General argues defendant’s invocation of the right to remain silent was
ambiguous, defendant was not in Miranda custody during the 10-second video, and any
error in the admission of this video was harmless. Given our conclusions, post, that
(1) the trial court admitted no evidence from the first custodial conversation,
(2) defendant did not unequivocally invoke the right to remain silent at any time; and
8
(3) defendant was not in custody when the incriminating admission was obtained, we
need not resolve the issue of whether Correctional Deputy Pannell gave defendant
appropriate warnings.
B. Custodial Interrogation
Because the Miranda rule applies only “when an individual is taken into custody
or otherwise deprived of his freedom by the authorities in any significant way and is
subjected to questioning,” (Miranda, supra, 384 U.S. at p. 478 [16 L.Ed.2d at p. 726], we
start our analysis with whether defendant was in custody at the time he made his
confessions.
The requirement for Miranda warnings was extended to prison inmates by
Mathis v. United States (1968) 391 U.S. 1, 4-5, [20 L.Ed.2d 381, 385]. (Fradiue, supra,
80 Cal.App.4th at p. 19.) Whether an inmate’s interrogation is “custodial” for purposes
of Miranda requires a different analysis because, by definition, inmates are already
confined in prison. (Id. at p. 20.) To determine whether an inmate is in custody, the
relevant question is whether some extra degree of restraint was imposed upon the inmate
to force the inmate to participate in the interrogation. (Ibid.) The court must consider the
totality of the circumstances in determining whether prison officials have applied an
additional restraint, further restricted an inmate’s freedom, and triggered the requirement
to provide Miranda warnings. (Id. at p. 21.) We look to four factors to determine
whether an interrogation with an inmate is custodial: “(1) the language used to summon
the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the
extent to which the inmate is confronted with evidence of his guilt, and (4) the additional
pressure exerted to detain him.” (Id. at p. 20.)
In Fradiue, the incarcerated defendant was questioned by a correctional officer in
an administrative investigation as to whether drugs found in his cell belonged to him.
(Fradiue, supra, 80 Cal.App.4th at p. 18.) The defendant had the opportunity to exercise
a peremptory challenge to disqualify the first investigator assigned to this matter. (Id. at
9
pp. 17-18.) The correctional officer went to the defendant’s cell and stood in front of it.
(Id. at p. 19.) Defendant squatted or sat just inside the cell door. (Id. at p. 18) The
correctional officer informed defendant of his right to exercise a peremptory challenge.
(Ibid.) During the following thirty-minute conversation, defendant admitted he possessed
the drugs. (Ibid.) In rejecting defendant’s argument his confession must be suppressed
because had been obtained without first reading him his Miranda warnings, the court
noted the defendant had not been summoned anywhere but was questioned in his cell.
(Id. at p. 20.) His cellmate was also present at the time. (Id. at pp. 20-21.) Defendant
was not handcuffed or otherwise restrained. (Id. at p. 21.) He was told he was free to
reject the investigator. (Ibid.)
Further, defendant acknowledged he was free to walk away from the investigator
and he was not confronted with any evidence of his guilt when he made his confession.
(Fradiue, supra, 80 Cal.App.4th at p. 21) Under the totality of these circumstances, the
court concluded “no restraints were placed upon defendant to coerce him into
participating in the interrogation over and above those normally associated with his
inmate status” and thus no Miranda warnings were required. (Ibid.)
In People v. Macklem (2007) 149 Cal.App.4th 674 (Macklem), the court noted the
focus of Miranda is “the coercive forces that may affect interactions between a suspect
and an interrogating official.” (Id. at p. 691.) The Macklem court phrased the relevant
questions of whether an inmate is in custody for purposes of Miranda as follows:
“ ‘[F]irst, what were the circumstances surrounding the interrogation; and second, given
those circumstances, would a reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave.’ [Citation.] This is determined on the totality of
the circumstances surrounding the alleged interrogation, to decide if prison officials
applied additional restraints that further restricted [the inmate’s] freedom, thereby
triggering Miranda warning obligations.” (Id. at p. 695.)
10
In Macklem, a detective went to interview defendant at the prison where defendant
was housed for a murder. (Macklem, supra, 149 Cal.App.4th at p. 682.) When she
arrived at the facility, she asked to speak with the defendant about an assault that
occurred at the prison. (Ibid.) Prison officials called defendant in his cell to see if he
wanted to talk to the detective. (Id. at p. 688.) Defendant was brought into an interview
room (normally used for attorney and physician conferences) to meet with the detective
and his handcuffs were removed. (Ibid.) The door to the room was left ajar. (Ibid.) The
detective identified herself and told him she wanted to talk about the assault case she was
investigating. (Ibid.) She told him he was not required to talk to her and if he wanted to
leave at any time, she would leave the room and lock the door and he would be taken
back to his housing unit. (Ibid.) During that conversation, defendant made incriminating
statements about the murder. (Ibid.) The court concluded defendant was not in custody
for purposes of Miranda and, thus, Miranda’s protections did not apply to him. (Id. at
p. 696.)
Here, we must analyze two separate interrogations. In the first, defendant was not
invited to a meeting he was entitled to refuse. Instead, the correctional deputy removed
him from his cell, visually strip searched him, and then placed him in a small interview
room. The only way out of the interview room was through Correctional Deputy Pannell
while he was interrogating him. Correctional Deputy Pannell confronted defendant with
the evidence of his guilt in this first meeting. Contrasted with these factors
demonstrating defendant was subject to restraint above and beyond normal prison
conditions, only one of the relevant factors weighs against this determination. In the
short conversation, defendant was not handcuffed or otherwise restrained. Based on the
totality of the circumstances, we conclude defendant was subjected to additional
restraints that further restricted his freedom above and beyond what a normal inmate
experiences in jail during this first meeting. A reasonable inmate under these
11
circumstances would not feel free to leave the interrogation. As a result, during this first
interrogation, defendant was in custody for purposes of Miranda.
The circumstances surrounding the second interrogation, however, were markedly
different and indicate he was not in custody. During the second interaction, defendant
was not compelled to meet with Correctional Deputy Pannell. Instead, defendant was
standing down the hallway from the Correctional Deputy and headed back to his cell.
While other deputies were present, none was exerting any type of restraint or showing
any intimidation towards defendant. The correctional deputies were casually standing
around watching the scene unfold and physically separate from where defendant stood.
Defendant held a tray in his hand (presumably his lunch) and immediately after
affirmatively answering the two quick questions, he turned to go back towards what
appears to be his residence in cellblock C. Correctional Deputy Pannell applied no undue
pressure or intimidation himself in this second interaction. Defendant was free to ignore
his questions and not respond, but instead nodded his head admitting he had been caught.
Under these circumstances, we conclude the second interrogation was not custodial.
C. Unambiguous Assertion of the Right to Remain Silent
Defendant contends even without a proper advisement of his Miranda rights; he
invoked his right to silence during the first video and Correctional Deputy Pannell should
have scrupulously honored his right by ceasing all questioning of him. We conclude
defendant failed to unambiguously invoke his right to remain silent.
To invoke the Fifth Amendment privilege, and to halt police questioning after it
has begun, the suspect “must unambiguously” assert his right to remain silent. (People v.
Stitely (2005) 35 Cal.4th 514, 535.) The determination as to whether a defendant has
unambiguously invoked their right requires us to determine whether a reasonable police
officer would interpret the statement as one made to terminate the interrogation.
(People v. Williams (2010) 49 Cal.4th 405, 434.)
12
Generally, a “no” response to a simple question whether the suspect wishes to
speak with law enforcement constitutes an unambiguous invocation of the right remain
silent. (People v. Flores (2020) 9 Cal.5th 371, 418.) Where the question asked, or the
answer given is complex, uncertain, or confusing, however, context matters. (Ibid.) In
those cases, officers may ask a limited number of follow up questions to render more
apparent the true intent of the defendant. (Ibid.) In Flores, the police asked defendant a
long, complex, and ambiguous question about whether the defendant “wanted to talk a
little bit” about the case or how the police officers were called out to the crime. (Id. at
p. 415) The defendant first responded “no” or “nah.” (Ibid.) The officer followed up
with a further question if he wanted to share about how they got called out, reminding the
defendant he did not have to answer any questions, and that he wanted to talk to the
defendant about things like his name and birthdate, and things like that. (Id. at pp. 415-
416.) In response to whether he wanted to talk about that, the defendant said “yeah, well
whatever.” (Id. at p. 416.) The defendant then made admissions in that conversation
about how he committed the murder. (Ibid.) Our Supreme Court concluded the follow
up question was a permissible attempt to clarify the defendant’s intent given the inherent
ambiguity in the officer’s original question and answer. (Id. at p. 419.)
Here, defendant said, “I’d rather not say nothing that way no one gets their
feelings hurt,” in response to the questions: “How much [heroin] did you bring in?
Allegedly a gross number. What are you working with?” Based on our review of the
video and the totality of the circumstances, we conclude this was not an unambiguous
assertion of the right to remain silent. Defendant’s statement could be taken a couple
ways. It could have expressed his desire not to talk at all, or more likely, simply a
statement he did not want to talk about the amount of heroin he brought into the jail in
response to the specific questions asked of him on that subject.
In terms of context, the relevant statement was made during a short two-minute
conversation, not during a long exhausting conversation filled with potentially coercive
13
law enforcement inquiries. At the beginning of the conversation, defendant affirmatively
agreed he wanted to know why Correctional Deputy Pannell was there. It was not until
Correctional Deputy Pannell told him why and asked him the quantity of drugs defendant
had brought into the prison, that defendant responded he “would rather not say nothing.”
The nature of the defendant’s response after his statement invited further
clarification and cuts against a finding defendant unambiguously expressed his intent to
remain silent. When Correctional Deputy Pannell followed up defendant’s answer by
telling him he had brought more heroin into jail than the deputy expected, defendant
responded by asking, “What’d you expect? Rather than remaining silent, defendant
continued the conversation as though it was not over. Thus, we conclude defendant did
not unambiguously invoke his right to remain silent.
While defendant was in custody for purposes of Miranda during the original
interrogation, he did not unambiguously invoke his right to remain silent. Although the
evidence does not support the contention defendant was given the required full recitation
of rights under Miranda, nothing he said in that first conversation was used against him at
trial. Thus, we conclude there was no violation of the Miranda rule related to this
discussion.
After the first interrogation was completed, correctional deputies released
defendant back to his jail living quarters and gave him his lunch. It was then that
Correctional Deputy Pannell asked two more questions just before defendant ducked into
the door labeled “C”. At this time, defendant was no longer in custody, but was free to
head back to his cell with his lunch. His demeanor and the nature of the conversation
demonstrated defendant believed he was free to go, as he did so he nodded yes to the
second question. “Absent ‘custodial interrogation,’ Miranda simply does not come into
play.” (People v. Mickey (1991) 54 Cal.3d 612, 648.) Because defendant was not in
custody for purposes of Miranda when this confession was obtained, there was no
violation of his rights when it was presented to the jury.
14
D. Restitution
In his supplemental briefing, defendant argues the trial court erred in ordering him
to pay restitution because the trial court could not consider the facts of the dismissed
action. The Attorney General concedes. We accept the Attorney General’s concession.
In Harvey, our Supreme Court held the trial court could not consider any of the
facts underlying dismissed counts because, absent an agreement to the contrary, a plea
bargain implicitly includes the understanding the defendant will not suffer any adverse
sentencing consequences by reason of the facts underlying the dismissed counts. This
rule applies to restitution. “When a court imposes a prison sentence following trial,
section 1202.4 limits the scope of victim restitution to losses caused by the criminal
conduct for which the defendant sustained the conviction.” (People v. Woods (2008)
161 Cal.App.4th 1045, 1050.)
“To avoid the Harvey restriction, prosecutors often ‘condition[] their plea bargains
upon the defendant agreeing that the sentencing court may consider the facts underlying
the not-proved or dismissed counts when sentencing on the remainder.’ [Citation.]
Defendants may accept this relatively minor potential consequence in order to avoid other
convictions or sentencing enhancement terms. [Citation.] This agreement is known as a
‘Harvey waiver.’ [Citation.] A Harvey waiver permits the sentencing court to consider
the facts underlying dismissed counts and enhancements when determining the
appropriate disposition for the offense or offenses of which the defendant stands
convicted.” (People v. Munoz (2007) 155 Cal.App.4th 160, 167.)
Here, when the trial court dismissed the first case (case No. 19CF05982) during
the sentencing proceedings for both cases, the trial court granted what the prosecutor
proffered as a motion to dismiss the first case with a Harvey waiver. The trial court,
however, did not obtain a Harvey waiver from defendant, nor does one appear in writing
in the record. Without a waiver from defendant that the trial court could consider the
dismissed charges in sentencing defendant, the trial court erred in imposing restitution.
15
DISPOSITION
The order of restitution in the amount of $1,465.48 in favor of AT&T is stricken.
In all other respects, the judgment is affirmed.
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
MAURO, J.
\s\ ,
RENNER, J.
16