People v. Mena CA5 ( 2022 )

Filed 8/26/22 P. v. Mena CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082294
Plaintiff and Respondent,
(Super. Ct. No. MCR061561B)
v.
ROBERTO CARLOS MENA, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Madera County. Joseph A.
Soldani, Judge. (Retired Judge of the Madera Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Snauffer, J. and DeSantos, J.
Roberto Carlos Mena operated a marijuana grow in a rented building. He stole
electricity to power the grow. He got caught and pled no contest to stealing electricity
(Pen. Code,1 § 498, subd. (d)).2 The court granted Mena probation and ordered him to
pay restitution to the power company.
Several months later, the building owner filed a request for restitution. Following
a few more filings from the parties and a few more hearings, the court granted the
owner’s request by modifying Mena’s probation terms to include restitution to the owner.
On appeal, Mena claims the building owner lacked standing to request restitution
“through modification of the terms of probation.” The People oppose.
We conclude standing is irrelevant. The pertinent question is whether the court
could modify probation to include a term requiring restitution payable to the building
owner. Because the answer is yes, we affirm the trial court’s order.
BACKGROUND
Mena pled no contest to violating section 498, subdivision (d), for stealing
electricity. He stole the electricity to power a marijuana grow in a rented building. The
trial court granted probation and ordered Mena to pay restitution to the power company.
Later, the building owner filed a “motion to modify restitution order.” The motion
was based on section 1202.4, subdivision (f). The owner’s damages were later described
as “repairs to the building,” “[a] dangerous building citation,” “[a]ttorneys fees and
expenses,” and “[l]ost rent.” Mena filed a response arguing the owner was not a “victim”
to stealing electricity within the meaning of section 1202.4, subdivision (k).
At a hearing following Mena’s filed response, the court agreed the building owner
was not a “victim” under 1202.4, subdivision (k). But the court believed it was
1 All statutory references are to the Penal Code.
2Mena also pled no contest to unlawful firearm possession (§ 30605, subd. (a)).
That conviction is irrelevant to this appeal.
2.
appropriate to order restitution “under a different provision, [sections] 1203.1(a)(3) and
(j) ….” The matter was continued to permit Mena the opportunity to address those
sections. Mena subsequently filed a “supplement” urging the court to deny restitution
because the owner was “culpab[le]” and “ineligible to receive restitution.”
At the final hearing on the matter, the court stated it was “not convinced” the
owner “was complicit ….” It then modified Mena’s probation to include a restitution
term payable to the owner.
DISCUSSION
Mena argues the building owner, “as a private party … lacks standing to seek
restitution through modification of the terms of probation.” He states “[i]t is the long
standing rule that victims of crimes have no private right of enforcement of criminal
penalties.” He concludes “nothing in the criminal probation statutes suggest[s] that the
Legislature intended to afford crime victims a direct claim.”
The People assert “[t]he California Constitution and section 1202.46 confer
standing to crime victims to request restitution.” In our view, standing is irrelevant.
The pertinent questions are 1) whether the court could modify probation, 2) if yes,
did the modification comply with procedure, and 3) is the modification valid? We
believe the answer to each question is “yes.”
On restitution as a probation condition, the California Supreme Court has
explained:
“Section 1203.1 was added to the Penal Code in 1935.
(Stats.1935, ch. 604, § 2, pp. 1708–1709.) The statute gives
trial courts broad discretion to impose probation conditions to
foster rehabilitation and to protect public safety. [Citation.]
The court may impose upon probationers ‘reasonable
conditions, as it may determine are fitting and proper to the
end that justice may be done, that amends may be made to
society for the breach of the law, for any injury done to any
person resulting from that breach, and generally and
specifically for the reformation and rehabilitation of the
probationer….’ (§ 1203.1, subd. (j).)
3.
“Restitution as a condition of probation has always been
expressly authorized by section 1203.1. Originally, the
statute called on trial courts to consider reparation or
restitution as a condition of probation. (See Stats.1935,
ch. 604, § 2, p. 1708; People v. Birkett (1999) 21 Cal.4th 226,
234, fn. 8.) The statute was amended in 1982 to require that
restitution be imposed ‘in proper cases.’ (Stats.1982,
ch. 1413, § 6, pp. 5403–5404; now § 1203.1, subd. (a)(3).)
“While restitution under section 1203.1 may serve to
compensate the victim of a crime, it also addresses the
broader probationary goal of rehabilitating the defendant.
‘ “Restitution is an effective rehabilitative penalty because it
forces the defendant to confront, in concrete terms, the harm
his actions have caused.” ’ [Citation.] Restitution ‘impresses
upon the offender the gravity of the harm he has inflicted
upon another, and provides an opportunity to make
amends.’ ” (People v. Anderson (2010) 50 Cal.4th 19, 26-27
(Anderson).)
Section 1203.3, subdivision (b)(1) adds that “[b]efore any sentence or term or condition
of probation or condition of mandatory supervision is modified, a hearing shall be held in
open court before the judge.”
With these principles in mind, we find no issue with the court’s probation
modification to include a restitution term payable to the building owner. There is no
doubt the court has authority to modify terms of probation. (See § 1203.3, subd. (a).)
There is no doubt Mena was provided the opportunity to contest the modification—he
filed an objection and voiced his concerns in court during a hearing dedicated to the
modification.
Finally, there is no doubt the modification related to rehabilitation—Mena is
tasked with paying restitution to the building owner for damages3 resulting from the
3 To quote the trial court, restitution was ordered relative to “actual cost to make
repairs to the building,” a “[d]angerous building citation … paid by the property
owner … that was a result of [] Mena’s actions,” “[a]ttorneys’ fees and expenses” related
4.
marijuana grow. The modification “ ‘impresses upon [him] the gravity of the harm he
has inflicted upon another, and provides an opportunity to make amends.’ ” (Anderson,
supra, 50 Cal.4th at p. 27.) Accordingly, we affirm the trial court’s order.4
DISPOSITION
The November 20, 2020 order imposing restitution is affirmed.
to litigating the citation, and “[l]ost rent … because the building was no longer habitable
for any business purpose because of the damage done by” Mena.
4 As demonstrated, standing is irrelevant. The primary question is whether it was
in the court’s power to order the probation modification at issue. The genesis of the
modification does not matter.
5.