Filed 8/5/13 P. v. Ferguson CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

         Plaintiff and Respondent,                                                    F064495

                   v.                                         (Super. Ct. Nos. 11CM8769 & 11CM8916)

KEVIN ERNEST FERGUSON,                                                            OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kings County. James T.
LaPorte, Judge.
         Michael Willemsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity
S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         Before Wiseman, Acting P.J., Kane, J., and Peña, J.
       In case No. 11CM8769 appellant, Kevin Ernest Ferguson, pled guilty to receiving
stolen property (Pen. Code, § 496, subd, (a))1 and admitted allegations that he had a prior
conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). In case No.
11CM8916 Ferguson pled guilty to receiving stolen property.
       On January 17, 2012, the court sentenced Ferguson to an aggregate term of four
years eight months in both cases. The court also ordered Ferguson to pay victim
restitution of $8,000 in case No. 11CM8769.
       On appeal, Ferguson contends the court erred in ordering him in case No.
11CM8769 to pay $8,000 in victim restitution. We will find merit to this contention and
reverse the court‟s restitution order. In all other respects, we will affirm.
                                          FACTS2
       On July 15, 2011, Chris Rozzell left this home in Avenal and went to Los Angeles
after receiving a report that his father had passed away.
       On July 17, 2011, Avenal police received a report that Rozzell‟s home had been
burglarized. After receiving information that Lisa Tune and Ferguson committed the
burglary, an officer contacted Tune as she sat in her car. Tune told the officer she
purchased several items that were in her car from eBay and that other items had been left
there by Ferguson. The officer then contacted Rozzell and he identified some of the
items Ferguson gave to Tune as belonging to him. These items included a reciprocating
saw and an NEC brand laptop.




1      All further statutory references are to the Penal Code.
2     The facts relating to case No. 11CM8916 are omitted because they are not
germane to the issues Ferguson raises.


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       During a search of Ferguson‟s apartment later that day, police officers found
several other items belonging to Rozzell including personal checks and a Nintendo WII
gaming console.
       On August 3, 2011, at a preliminary hearing in case No. 11CM8769 the court held
Ferguson to answer on a charge of receiving stolen property, but not on a charge of
burglary.
       On August 16, 2011, the district attorney filed an information in case No.
11CM8769 charging Ferguson with a single count of receiving stolen property.
       On December 19, 2011, Ferguson entered his plea in both cases. As part of his
plea bargain Ferguson waived his appellate rights. In taking a waiver of these rights the
court stated: “All right. Mr. Ferguson, do you understand that by entering a plea in this
case you will be waiving your appellate rights as part of your plea agreement?” Ferguson
responded that he did.
       The probation report indicated that as a result of the burglary at his residence the
victim submitted a claim of $8,000 to his insurance company but was reimbursed only
$5,000 because of depreciation.
       On January 17, 2012, the court sentenced Ferguson pursuant to his plea agreement
to an aggregate term of four years eight months, the middle term of two years on
Ferguson‟s conviction in case No. 11CM8769, doubled to four years because of his prior
strike conviction in that case, and a consecutive eight-month term on his conviction in
case No. 11CM8916. The court also ordered Ferguson, without objection, to pay $8,000
in victim restitution in case No. 11CM8769.
                                      DISCUSSION
       Ferguson contends the court erred when it ordered him in case No. 11CM8769 to
pay $8,000 in victim restitution because: 1) restitution can be only be ordered for the
crime a defendant is convicted of; and 2) this amount did not relate to the receiving stolen

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property offense that he pled to in that case. Respondent contends this claim is not
properly before us because Ferguson forfeited his right to challenge this restitution order
by his failure to object to it in the trial court and he waived his appellate rights.
Alternatively, respondent contends the restitution order was proper because Ferguson was
found in possession of property belonging to the victim and there is no evidence the
victim recovered this property. We agree with Ferguson.

              “We review the trial court‟s restitution order for abuse of discretion.
       [Citation.] A restitution order that is based on a demonstrable error of law
       constitutes an abuse of the trial court‟s discretion. [Citation.]” (People v.
       Woods (2008) 161 Cal.App.4th 1045, 1048-1049.)

               “While it is true that crime victims in California have a right to
       restitution, the right to recover from any given defendant is not unlimited.
       Our Constitution provides that „It is the unequivocal intention of the People
       of the State of California that all persons who suffer losses as a result of
       criminal activity shall have the right to restitution from the persons
       convicted of the crimes for losses they suffer.‟ (Cal. Const., art. I, § 28,
       subd. (b).) The Legislature has affirmed this intent, providing in [Penal
       Code] section 1202.4, subdivision (a)(1), that a „victim of crime who incurs
       any economic loss as a result of the commission of a crime shall receive
       restitution directly from any defendant convicted of that crime.‟

              “Courts have interpreted section 1202.4 as limiting restitution
       awards to those losses arising out of the criminal activity that formed the
       basis of the conviction. „Subdivision (a)(3)(B) of section 1202.4 requires
       the court to order “the defendant”—meaning the defendant described in
       subdivision (a)(1), who was “convicted of that crime” resulting in the
       loss—to pay “[r]estitution to the victim or victims, if any, in accordance
       with subdivision (f).” Subdivision (f) of section 1202.4 provides that “in
       every case in which a victim has suffered economic loss as a result of the
       defendant’s criminal conduct, the court shall require that the defendant
       make restitution to the victim or victims in an amount established by court
       order, based on the amount of loss claimed by the victim or victims or any
       other showing to the court.” (Italics added.) Construed in light of
       subdivision (a)(1) and (3)(B), the term “criminal conduct” as used in
       subdivision (f) means the criminal conduct for which the defendant has
       been convicted.‟ [Citation.]


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               “This limitation does not apply in the context of grants of probation.
       „California courts have long interpreted the trial courts‟ discretion to
       encompass the ordering of restitution as a condition of probation even when
       the loss was not necessarily caused by the criminal conduct underlying the
       conviction. Under certain circumstances, restitution has been found proper
       where the loss was caused by related conduct not resulting in a conviction
       [citation], by conduct underlying dismissed and uncharged counts
       [citation], and by conduct resulting in an acquittal [citation].‟ [Citation.]
       However, 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, 1049-1050.)
       Ferguson‟s receipt of stolen property conviction was based on his possession of
several items of property police found in his apartment and/or in Tune‟s car two days
after the victim‟s house was burglarized. Presumably, these items were returned to the
victim by the police. (Cf. People v. Scroggins (1987) 191 Cal.App.3d 502, 506.) Thus,
the $8,000 victim restitution order was not based on losses the victim suffered as a result
of criminal conduct that resulted in Ferguson‟s conviction.
       Respondent contends there is no evidence the victim ever recovered the property
and he cites the insurance settlement as evidence of this. However, the portion of the
record respondent cites for this assertion indicates only that the insurance company
reimbursed the victim a depreciated value of $5,000 for his losses. It does not indicate,
as respondent suggests, that this amount included reimbursement for property Ferguson
received which, as noted above, should have been returned to the victim after it was
recovered by police. Thus, we conclude the court abused its discretion when it ordered
Ferguson to pay $8,000 in victim restitution because its restitution order was not based on
losses the victim suffered as a result of the conduct underlying Ferguson‟s criminal
conviction.




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            Ferguson did not Forfeit his Right to Challenge the Restitution
                  Order Because it was an Unauthorized Sentence

              “[T]he „unauthorized sentence‟ concept constitutes a narrow
       exception to the general requirement that only those claims properly raised
       and preserved by the parties are reviewable on appeal. [Citations.] The
       „unauthorized sentence‟ principle also has been invoked to determine
       whether claims previously rejected or never raised are procedurally barred
       on habeas corpus. [Citations.]

              “Although the cases are varied, a sentence is generally
       „unauthorized‟ where it could not lawfully be imposed under any
       circumstance in the particular case. Appellate courts are willing to
       intervene in the first instance because such error is „clear and correctable‟
       independent of any factual issues presented by the record at sentencing.
       [Citation.]” (People v. Scott (1994) 9 Cal.4th 331, 354.)
       The trial court‟s restitution order constituted an unauthorized sentence because it
violated section 1204 by requiring Ferguson to pay restitution for losses not caused by
criminal conduct for which he was convicted even though he was sentenced to prison.
Therefore, notwithstanding Ferguson‟s failure to object to the order in the trial court, we
may correct this error on appeal because it presents a pure question of law.
       Respondent contends the restitution order did not constitute an unauthorized
sentence because: 1) there are circumstances under which restitution could be ordered in
the instant case such as if Ferguson‟s receipt of the victim‟s stolen property caused losses
to the victim; and 2) altering the order would require this court to make a fact-intensive
inquiry into Ferguson‟s conduct and the victim‟s losses. Respondent is wrong. An
intensive factual inquiry is unnecessary in order to grant Ferguson the relief he seeks
because, again as noted previously, the victim did not suffer any losses as a result of
Ferguson‟s criminal conduct for which he was convicted.
       Moreover, even assuming a waiver of appellate rights can encompass an
unauthorized sentence, we find no merit to respondent‟s contention that Ferguson‟s
waiver of appellate rights precludes him from challenging the restitution order.

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               “„Waiver is ordinarily a question of fact. [Citation.]‟ [Citation.] It
       is defined as „[a]n intentional relinquishment or abandonment of a known
       right or privilege. The determination of whether there has been an
       intelligent waiver ... must depend, in each case, upon the particular facts
       and circumstances surrounding that case, including the background,
       experience, and the conduct of the accused.‟ [Citation.]

              “„[T]he valid waiver of a right presupposes an actual and
       demonstrable knowledge of the very right being waived. [Citations.]‟
       [Citation.] It „“[i]s the intelligent relinquishment of a known right after
       knowledge of the facts.” [Citation.]‟ [Citation.] The burden is on the party
       claiming the existence of the waiver to prove it by evidence that does not
       leave the matter to speculation, and doubtful cases will be resolved against
       a waiver. [Citation.] The right of appeal should not be considered waived
       or abandoned except where the record clearly establishes it. [Citation.]”
       (People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1662 (Vargas).)
       Like the defendant in Vargas, Ferguson‟s waiver of appellate rights was broad and
general and he was not specifically informed that he would also be waiving possible
future error. (Vargas, supra, 13 Cal.App.4th at p. 1662.) Thus, like the Vargas court we
conclude that “the record in the present case does not support a knowing and intelligent
waiver of defendant‟s right to appeal sentencing error occurring after a general waiver of
the right to appeal.” (Id. at p. 1663.)
                                          DISPOSITION
       The restitution order is reversed. The trial court is directed to prepare an amended
abstract of judgment that is consistent with this opinion and to forward a certified copy to
the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.




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