People v. Schumacher CA3 ( 2015 )

Filed 5/20/15 P. v. Schumacher 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C074062
Plaintiff and Respondent, (Super. Ct. No. 12F7496)
v.
ANTHONY LEE SCHUMACHER,
Defendant and Appellant.
Sentenced to state prison pursuant to a plea bargain, defendant Anthony Lee
Schumacher appeals from the trial court’s order requiring him to pay $14,565.34 in
victim restitution to William Byron. Defendant contends that (1) absent a Harvey waiver
(People v. Harvey (1979) 25 Cal. 3d 754 (Harvey)), the evidence was insufficient to show
that most of Byron’s alleged loss was a result of the criminal acts of which defendant was
convicted; (2) the trial court erred by ordering restitution for purchases Byron made for
business entities that were not direct victims of defendant’s crimes; (3) the trial court’s
erroneous evidentiary rulings prevented defendant from establishing that Byron did not
personally incur the expense of those purchases; (4) this court should remand for a new
hearing as to those items; and that (5) the trial court should decide on remand whether
1
any restitution award is subject to forfeiture based on Byron’s probable use of the
allegedly lost property in criminal narcotics activity. In support of the last contention,
defendant requests we take judicial notice that on a date well after the victim restitution
hearing, Byron was convicted of an out-of-state narcotics offense. Defendant also points
out two errors in the sentencing minute orders.
Finding all of defendant’s substantive contentions without merit, we affirm the
victim restitution order and deny defendant’s request for judicial notice. However, we
remand the matter for correction of the sentencing minute orders.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Proceedings
In October 2012, in case No. 12F7496, a felony complaint deemed an information
charged defendant with shooting at an occupied motor vehicle (count 1; Pen. Code,
§ 246—undesignated statutory references are to the Penal Code) and assault with a
firearm (count 2; § 245, subd. (a)(2)). An on-bail enhancement was alleged as to both
counts. (§ 12022.1.)
On January 8, 2013, defendant pleaded no contest in case No. 12F7496 to assault
by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), a related
offense to that charged in count 2, after the People added that charge to the information
as count 3. At the same time, in case No. 12F4251, defendant pleaded no contest to one
count of assault by means of force likely to produce great bodily injury and two counts of
assault with a machine gun or automatic weapon (§ 245, subd. (a)(3)), and in case No.
12F7497, defendant pleaded no contest to one count of possession for sale of a controlled
substance (Health & Saf. Code, § 11379, subd. (a)). In return, defendant was promised
an aggregate state prison sentence of 11 years eight months and the dismissal of all
remaining counts and allegations. The plea agreement did not include a Harvey waiver.
On January 24, 2013, the trial court imposed the agreed-upon sentence. The
prosecutor stated that the People were claiming $16,640 in victim restitution; defense
2
counsel demanded a restitution hearing. The court reserved jurisdiction to determine
victim restitution and scheduled a future restitution hearing.
Facts Supporting the Plea
There was no preliminary hearing or probation report. The parties stipulated that
the factual basis for defendant’s pleas could be found in the police reports, which are not
in the appellate record. However, the People presented the underlying facts in their
motion to order restitution, and defendant agrees that the People’s summary accurately
represents the facts.
The motion states, in part: “Mr. Byron (Byron), the victim, lived with a woman
named Peggy Schumacher, who is the defendant’s . . . grandmother. Peggy allowed
Byron to live on the property in his trailer and operate a marijuana grow. Three to four
weeks prior to the incident that gave rise to the charges in this case, [defendant] moved
into his grandmother’s residence.
“Upon moving into the residence, [defendant] displayed aggressive behavior
toward Byron and his friends. [Defendant] advised Byron that he didn’t like the way one
of Byron’s friends looked at him and he wanted the friend off his grandmother’s
property. [Defendant] then produced a nine-millimeter handgun, shot a round into a tree,
and then said, ‘Do something about it.’ At another time, [defendant] arrived at the
property with five of his cousins. By the way they were acting Byron believed the
subjects were going to start trouble. Fortunately, according to Byron, [defendant’s]
grandmother arrived and told [defendant] and his cousins to leave.
“Because of the menacing behavior of the defendant, on 9 October 2012 Byron
began the process of moving off the property. While towing a trailer behind his vehicle
in the area of Buenaventura Boulevard and Teton Drive, Byron heard a single gunshot.
Byron immediately looked up and saw the defendant driving his Cadillac Escalade.
[Defendant] had his left hand outside the driver’s window and he was holding something.
Byron heard approximately four more shots as he continued driving.
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“When Byron reached a place of safety, he inspected his vehicles and noticed a
bullet hole in the rear of the fifth wheel trailer he was towing. Also, a wheel on another
vehicle being driven by a friend who followed was going flat. A bullet fragment was
located inside the wheel. Law enforcement did not apprehend and capture [defendant]
until 18 October 2012. Because [defendant] shot at him, Byron feared returning back to
the residence to retrieve the remainder of his property.”
The People’s Victim Restitution Claim
The People asserted that the value of Byron’s damaged or abandoned property was
$16,640, mainly from items related to Byron’s marijuana grow, which he left behind for
fear of returning to the property while defendant was on the loose. The People attached
receipts and a cover sheet furnished by Byron.
The cover sheet listed the following items:
Blueray [sic] 119
Tire 207
Fencing 4006
Fertilizer/pots/etc. 91
80
294
323
FarmTek 1486
McConkey 648
[T]hrifty Supply 5118
Royl [sic] Gold 919
Royl [sic] Gold 1200
ShmidBaur [sic] [Building Supply] _2149
16640
A receipt for each item was attached. Most showed Byron as the buyer. However, the
FarmTek receipt showed “Bill Byron [¶] The Herb Center Inc” as the buyer, the
McConkey receipt showed “The Herb Center Inc.” alone as the buyer, and the two Royal
Gold receipts showed “Humboldt County Collective” and “Humboldt Co Collective” as
the buyer.
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Defendant’s Response
On April 22, 2013, defendant filed attachments A through F in support of a request
to continue the restitution hearing.1
Attachment A was described as “County of Humboldt, Board of Supervisors
Recommendations with respect to ‘Revocation of the Humboldt County Collective
Conditional Use Permit,’ dated 8/30/12.” It purported to show: The Humboldt County
Collective (THCC) was the county’s first authorized medical cannabis collective. On
April 6, 2012, county staff learned that Byron, THCC’s director, had been arrested on
drug trafficking charges in Pennsylvania. On June 7, 2012, Byron announced publicly
that he was resigning as director and had turned over the operation and management of
THCC to Collin and JoAnn Hammans. The Hammanses’ subsequent financial report
showed an unexplained operating loss, possibly linked to the criminal charges against
Byron.
Attachment B was described as “News articles with respect to the arrest of Bill
Byron for marijuana trafficking in Berks County, Pennsylvania, in April 2012.” These
articles alleged that the California Department of Justice closed THCC and served search
warrants on the premises. Byron was accused of shipping a 25-pound package of
marijuana, packaged for sale, to the Pennsylvania home of a friend he was visiting. If
convicted, he faced a Pennsylvania prison sentence of up to five years.
Attachment C, the search warrant issued for THCC premises and Byron’s person
and vehicle, alleged that THCC was also known as The Herb Center, and the two
businesses had the same address. The supporting affidavit alleged: Law enforcement
officers intercepted a suspicious package at a FedEx facility on April 2, 2012. The
1 Defendant’s filing did not state the grounds on which the continuance was requested or
make any argument of any kind. As will appear, the trial court did continue the hearing
but did not cite defendant’s filing.
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address of the sender in California and the name of the recipient in Pennsylvania were
fictitious. A trained drug-sniffing dog detected a narcotics odor coming from the parcel.
The California authorities notified the Pennsylvania authorities, then let the package be
shipped. After it was delivered, Pennsylvania police contacted the homeowner and
Byron.
Attachment D, the return of search warrant, indicated that items including
marijuana, firearms, and $14,380 in cash were found at Byron’s residence.
Attachment E, labeled “Criminal Docket number CP-06-CR-0002103-2012, the
Commonwealth of Pennsylvania v. William Charlie Byron, pages 1 through 5,” purported
to show that Byron was arraigned in Berks County, Pennsylvania, in May 2012 on
multiple counts of attempted “Manufacture, Delivery, or Possession With Intent to
Manufacture or Deliver” a controlled substance, and of conspiracy to do the same, and
that a status hearing was scheduled in April 2013.
Attachment F, described as “Humboldt County Collective, correspondence from
JoAnn [sic] Hammans, dated 10/9/12, detailing the transfer of ownership of the
Humboldt County Collective, formerly The Herb Center, from William Byron to Collin
and JoAnn Hammons [sic] in May 2012,” stated that Byron had resigned from the
collective as of May 25, 2012, and was not a member of the collective after that date.
Further Proceedings
At a hearing on April 22, 2013, the trial court ordered restitution in the amounts
claimed for Byron’s damaged Blu-ray disc player and tire ($207.54 and $119.99,
respectively).2 The court continued the restitution hearing because the prosecutor had
said Byron was going to retrieve some of the other listed property in the near future.
2 Defendant does not contest that order.
6
At the main victim restitution hearing on May 6, 2013, the prosecutor stated that
Byron had retrieved some of the listed property and there had been an adjustment to the
overall request. The court concluded that the amount currently at issue (“the prima facie
amount”) was $14,565.34.
Defense counsel called Byron as a witness and asked: “[W]ere you a business
owner of a --[.]” The prosecutor objected that the question was irrelevant.
Counsel explained: “Your Honor, I simply want to put on the record . . . that
Mr. Byron owned a business[;] that the number of these receipts reflect [sic] were
purchases for the business; that he was no longer a part of this business at the time of this
incident and when these losses were sustained. Moreover, I would want to put the fact of
his arrest in Pennsylvania on the record.”
The trial court ruled that counsel could inquire into “what was paid by a business
[not owned in whole or in part by Byron] versus what was paid by Mr. Byron.”
Byron testified that he was previously the owner of The Herb Center, which he
called “a management company” that “managed a collective.” Counsel asked: “Was The
Herb Center not a marijuana collective in Humboldt County?” The trial court sustained
the prosecutor’s relevance objection.
Counsel asked Byron if “at some point you left your ownership or you sold your
interest or you got out of ownership of that company . . . ?” Byron answered, “No.” The
trial court overruled the prosecutor’s relevance objection.
Asked whether The Herb Center changed its name or became another type of
business in April 2012, Byron answered, “No.” Asked whether The Herb Center
remained a business entity, Byron answered, “Yes.”
Counsel asked: “What is the relationship between The Herb Center and The
Humboldt County Collective?” The trial court initially sustained the prosecutor’s
relevance objection but changed its ruling after counsel pointed out the receipts showing
THCC as the purchaser.
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Counsel asked whether Byron had an interest in THCC; he answered, “Now?
No.” He said he had had such an interest “[a ]year ago”; he could not say exactly when it
ended, but it did not end before October 9, 2012 (the date of defendant’s crimes).
Counsel asked: “And what’s [THCC]?” The trial court sustained the prosecutor’s
objection, stating that “the nature of [THCC]” was not relevant to “whether or not they
paid a bill unrelated to money coming out of this person’s pocket.” The court also
sustained objections to questions of whether Byron was paid a salary by The Herb Center
or THCC.
Counsel argued: “Your Honor, this would go to if he’s being compensated for his
role in this business and if the funds . . . from the business are being --[.]” The trial court
replied: “But we haven’t established that the funds are coming from the business versus
his pocket, which is what this testimony is relevant to. I don’t care whether he’s getting
paid a salary or he is doing it for fun. The issue is, if we’re looking at number 41, based
on my ruling, is who paid $919.50? Where . . . did that money come from which was
used to exchange for 9 yards of Bulk Mendo Mix and three somethings of Royal Gold
Mix?”
Asked who paid for the $919 worth of Bulk Mendo Mix and Royal Gold Base
Mix, Byron answered, “I did.” Asked whether he paid for it “as a business expense or an
investment in [THCC],” he answered, “No.”
Asked about the source of the money for “the $1,200 worth of Royal Gold Mendo
Mix,” Byron replied that it came “[f]rom me” and was not a purchase made for the
business or an investment in the business.
Asked why he had named THCC on the purchase receipts, Byron answered: “It’s
associated with my name. [¶] . . . [¶] . . . I’m attached to it. It’s attached to me.”
Counsel asked: “Is it your testimony, Mr. Byron, that you made these investments
and the investments were not associated with [THCC]?” The trial court said: “I don’t
know what we mean by ‘investments.’ ”
8
Counsel tried again: “You made these purchases that I have described of Bulk
Mendo Mix and Royal Gold Mendo Mix. Were those . . . made for [THCC]?” Byron
replied: “I already said I made those purchases.”
Counsel asked: “You made those purchases and they were not associated in any
way with [THCC]?” The trial court said: “No. They were. That’s argumentative.”
The trial court continued: “[L]let me ask a clarifying question. [¶] . . . [¶] . . . Did
the money that you used come from your personal money or from some money of a
business?” Byron answered, “Personal.”
Counsel asked: “Now the purchase from FarmTek sold to Bill Byron of The Herb
Center for . . . $1,486 . . . . [W]ith whose money was that payment made, your money or
The Herb Center’s money?” Byron answered, “My money.” Asked, “And why is it
listed as being sold to you The Herb Center [sic]?” Byron answered: “Again, associated
with it.”
Counsel asked: “How are you associated with The Herb Center?” The trial court
sustained the prosecutor’s objection, ruling the answer was irrelevant.
Counsel asked the same questions as to the purchase from McConkey’s for $648,
billed to The Herb Center. Again, Byron answered that he made the purchase with his
own money and used The Herb Center’s name because it “is associated with me.”
Counsel asked: “And Mr. Byron, The Herb Center and [THCC], were those legal
businesses?” The trial court sustained the prosecutor’s relevance objection. Counsel
asserted that “if there is an illegal business, . . . that fact may impact the lawfulness of the
restitution order.” The court repeated: “The objection is sustained.” Counsel had no
further questions or witnesses.
The trial court ordered victim restitution to Byron in the sum of $14,565.34.
DISCUSSION
I
We begin with an overview of the law of victim restitution.
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“[I]n every case in which a victim has suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant make restitution to the
victim . . . in an amount established by court order, based on the amount of loss claimed
by the victim . . . or any other showing to the court.” (§ 1202.4, subd. (f).)
To decide whether a victim’s loss is the “result of the defendant’s criminal
conduct” (§ 1202.4, subd. (f)(3)), courts apply tort principles of causation, including
cause in fact (whether the defendant’s act was “ ‘a necessary antecedent of an event’ ”)
and proximate cause (whether policy considerations make it appropriate to impose
liability on the defendant). (People v. Jones (2010) 187 Cal. App. 4th 418, 425-427
(Jones); accord, People v. Holmberg (2011) 195 Cal. App. 4th 1310, 1320-1321
(Holmberg).)
“. . . California courts have adopted the ‘substantial factor’ test in analyzing
proximate cause. [Citation.]” (Holmberg, supra, 195 Cal.App.4th at p. 1321.) This
broad standard requires only that the contribution of any individual cause is more than
negligible or theoretical, and that no intervening, superseding cause exists to relieve the
defendant of liability. (Id. at p. 1321; Jones, supra, 187 Cal.App.4th at p. 427.)
“A defendant is entitled to a restitution hearing to ‘dispute the determination of the
amount of restitution.’ (§ 1202.4, subd. (f)(1).) As recently explained, ‘At a victim
restitution hearing, a prima facie case for restitution is made by the People based in part
on a victim’s testimony on, or other claim or statement of, the amount of his or her
economic loss. [Citations.] “Once the . . . People have . . . made a prima facie showing
of [the victim’s] loss, the burden shifts to the defendant to demonstrate that the amount of
the loss is other than that claimed by the victim.” ’ (People v. Millard (2009)
175 Cal. App. 4th 7, 26 [95 Cal. Rptr. 3d 751] (Millard); see also [People v.] Giordano
[(2007)] 42 Cal.4th [644,] 664 . . . .)” (People v. Chappelone (2010) 183 Cal. App. 4th
1159, 1172 (Chappelone).)
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We review the trial court’s restitution order under the abuse of discretion standard.
(Chappelone, supra, 183 Cal.App.4th at p. 1173.) Where there is a factual and rational
basis for the order under the substantial evidence standard, we will not find an abuse of
discretion. (Millard, supra, 175 Cal.App.4th at p. 26.)
II
Defendant contends: “Absent a Harvey waiver, the trial court lacked authority to
award restitution for Byron’s abandoned property because the abandonment did not result
from the criminal act of which [defendant] was convicted.”3 This contention is forfeited
because it was not raised below. But even if not forfeited, it lacks merit.
Defendant attacked the People’s prima facie case for victim restitution on two
grounds in the trial court: Byron was not entitled to restitution for the items supposedly
purchased by The Herb Center or THCC, and he was not entitled to any restitution
whatsoever because his acquisition or use of all the property at issue was somehow
tainted by illegality. But defendant never asserted until now that his own criminal
conduct did not proximately cause Byron to abandon the property. A party may not
change his theory of the case on appeal. (North Coast Business Park v. Nielsen
Construction Co. (1993) 17 Cal. App. 4th 22, 29 (North Coast Business Park).)
Defendant’s new and different theory is not properly before us.
Defendant asserts “the issue” is not forfeited for two reasons. First, “[defendant’s]
argument is premised on the absence of evidence to support a restitution award on any
ground[.]” Second, trial counsel objected to restitution on “due process grounds,” which
3 Defendant’s original opening brief asserted that after defendant’s arrest, Byron failed to
return to the site where the abandoned property was and reclaim it; thus, he had
“voluntarily abandoned” the property and could not obtain restitution for it. However, on
reading respondent’s original brief, appellate counsel realized that Byron did return to the
site and retrieve some of his property before the final restitution hearing. Therefore,
defendant’s supplemental opening brief abandons this aspect of his abandonment claim.
11
“encompasses an objection based on insufficiency of the evidence because an order or
judgment based on insufficient evidence violates due process.” We are not persuaded.
The “issue” that is forfeited is not whether the victim suffered a compensable loss,
but whether defendant’s conduct proximately caused that loss. In any event, defendant
does not show by record citation that he ever claimed below there was no evidence to
support a restitution order on any ground.
Trial counsel’s entire “due process” objection, on which defendant bootstraps his
second argument, was this: “And [I] simply just object on due process grounds that
[defendant] is going to be . . . ordered to pay this figure.” Since counsel failed to explain
why a restitution award would violate due process, this passing remark did not preserve
any “issue.”
Defendant asserts that if the issue is forfeited, he received ineffective assistance of
counsel. Because defendant’s new theory of the case lacks merit, as we now explain, trial
counsel was not ineffective for failing to raise it.
Defendant reasons: (1) The People judicially admitted in their motion for
restitution that Byron began to move off of defendant’s grandmother’s premises on
October 9, 2012, because of defendant’s menacing behavior several weeks earlier.
(2) Therefore, “the cause in fact of Byron’s losses were [sic] criminal acts for which no
criminal charges were filed.” Defendant’s conclusion is a non sequitur.
The undisputed evidence shows that defendant’s assault on Byron with a firearm
on October 9, 2012, the criminal act defendant admitted by his plea, caused Byron in fact
reasonably to fear returning to the premises to recover his property until defendant was
apprehended nine days later, and during that period most of the property was
irrecoverably lost. The evidence shows no intervening, superseding cause that would
relieve defendant of liability for that consequence of his criminal conduct, and we know
of no policy considerations that would do so. Thus, defendant’s charged and admitted
12
criminal conduct was both the cause in fact and the proximate cause of Byron’s losses.
(Holmberg, supra, 195 Cal.App.4th at p. 1321; Jones, supra, 187 Cal.App.4th at p. 427.)
Last, we reject defendant’s claim that the absence of a Harvey waiver somehow
matters to this issue, because he does not cite any dismissed count that could have created
liability for victim restitution had there been a Harvey waiver.
III
Defendant contends Byron was not entitled to restitution for any purchases he
made for THCC or The Herb Center because neither business was a direct victim of
defendant’s crime, and Byron’s claim that he owned or was associated with those
businesses does not assist him. Defendant also contends the trial court’s evidentiary
rulings improperly precluded him from rebutting the People’s prima facie case as to those
purchases, rendering the restitution hearing fundamentally unfair. We reject both
contentions.
The trial court impliedly found that none of the purchases at issue was made by or
for THCC or The Herb Center. Substantial evidence supports that finding. (Millard,
supra, 175 Cal.App.4th at p. 26 [standard of review].)
When questioned about the receipts that showed THCC or The Herb Center as the
nominal buyer, Byron answered that he paid for the items out of his personal funds.
Defendant produced no contrary evidence.
Defendant also failed to corroborate his present claim that the items were used or
intended for use by the businesses rather than by Byron himself. Byron’s explanation
that he used the businesses’ names on the receipts because those names were associated
with him was facially plausible and not rebutted by any defense evidence.4
4 Byron’s testimony that his “interest” in THCC did not end before October 9, 2012,
although vague, created a potential conflict with assertions in defendant’s attachments A
and F that Byron resigned as director of THCC and was no longer a member after May
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Defendant asserts that “being associated” with THCC “was an insufficient basis
on which to award restitution to an individual (Byron), even if he claimed to be acting on
the Collective’s behalf” but cites no authority to support this legal proposition.
It is also unclear whether defendant ever argued in the trial court what he argues
now. Trial counsel apparently sought to show that the businesses, not Byron, actually
paid for the items at issue. That is a different proposition from defendant’s appellate
assertion that Byron made those purchases for the businesses. To the extent defendant
seeks to change his theory of the case on appeal, his argument is not cognizable. (North
Coast Business Park, supra, 17 Cal.App.4th at p. 29.)
Finally, we reject defendant’s claim that the trial court improperly restricted his
questioning of Byron. As we have shown above, the court allowed trial counsel to
question Byron on the source of funds for the purchases bearing the businesses’ names
and the relationship between Byron and the businesses. What the court did not allow
counsel to do was to inquire into the nature, character, or legality of the businesses. The
court properly found that those inquiries could not produce any evidence relevant to
whether Byron made the purchases at issue, and trial counsel did not explain why the
legality of the businesses would matter to victim restitution. Defendant has shown no
error in the court’s evidentiary rulings.
IV
Defendant contends this court should remand the matter to the trial court for a new
hearing as to the items bearing the names THCC and The Herb Center. For the reasons
stated above, remand for this purpose is unnecessary.
25, 2012. However, trial counsel did not make any such argument. And even if counsel
had done so, that argument would not have rebutted Byron’s testimony that THCC was
“associated with my name” when he made the purchases that showed THCC as the buyer.
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V
Defendant contends that the trial court on remand should determine whether any
restitution award is subject to forfeiture because Byron may have used the property at
issue in connection with criminal narcotics activity, specifically a violation of Health and
Safety Code section 11360 (transportation of marijuana) or a conspiracy to commit that
offense (§ 182). He requests that we take judicial notice of a purported docket sheet that
appears to show Byron pleaded guilty on April 22, 2014, in the Berks County
(Pennsylvania) Court of Common Pleas to one count of conspiracy to manufacture,
deliver, or possess with intent to deliver a controlled substance, based on events
occurring in April 2012. (Pa. Stat. Ann., tit. 18, § 903, subd. (c) (Purdon 1998).) We
reject defendant’s contention. We also deny the request for judicial notice because
defendant has not shown why Byron’s purported out-of-state drug conviction, occurring
well after the restitution hearing in this case, is relevant.
Defendant cites Health and Safety Code section 11470, which provides that items
used in the commission of an offense involving controlled substances are subject to
forfeiture once the state has proved such offense. (Health & Saf. Code, § 11470,
subds. (b), (h).) But there was no evidence before the trial court, and there is none before
this court, that Byron used any item for which he sought restitution in the commission of
the purported Pennsylvania offense or any other offense involving controlled substances;
defendant’s contrary assertion is sheer speculation. Defendant also fails to cite any
authority showing that the trial court on remand would have jurisdiction to initiate a
forfeiture proceeding or inquiry sua sponte. (Cf. Health & Saf. Code, § 11488.4,
subd. (a) [forfeiture commences by petition filed by Attorney General or district attorney
of county in which defendant charged with underlying criminal offense].)
On direct appeal, we generally consider only matters that were part of the record
when the judgment was entered. (People v. Jacinto (2010) 49 Cal. 4th 263, 272, fn. 5.)
15
Defendant’s speculation gives us no grounds to depart from that rule. On the record
before us, we will not direct the trial court to consider any matter related to forfeiture.
VI
Defendant points out two errors in the sentencing minute orders. The Attorney
General properly concedes the errors.
First, the sentencing minute order of January 24, 2013, erroneously states that the
trial court ordered restitution to Byron in the amount of $16,640 in case No. 12F7496.
The minute order should be corrected to show that the court reserved jurisdiction over
victim restitution on January 24, 2013.
Second, the sentencing minute order of May 6, 2013, erroneously states (1) the
parties had said no hearing was necessary, as an agreement had been reached, and
(2) restitution had been ordered in the amount of $14,565.34 in case No. 12F7497. In
fact, as noted above, the parties agreed only on the previously stipulated award of
$327.53 in case No. 12F7496, and on the reduction of the remaining restitution claim in
the same case to $14,565.34. The minute order should be corrected to show that, after a
hearing, the trial court ordered further restitution in case No. 12F7496 in the amount of
$14,565.34.
DISPOSITION
The victim restitution order is affirmed. The matter is remanded to the trial court
with directions to correct the minute orders of January 24, 2013, and May 6, 2013, as set
forth in part VI of the Discussion.
RAYE , P. J.
We concur:
MURRAY , J.
HOCH , J.
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