THE PEOPLE v. ERIN LEDBETTER

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ERIN LEDBETTER, Defendant and Appellant.

B228601

Decided: January 20, 2012

Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Among other crimes, a jury convicted Erin Ledbetter of one count of theft of utility services under Penal Code section 498, subdivision (b), a misdemeanor.   The trial court sentenced Ledbetter to six months in county jail and ordered him to pay $1,503.20 in restitution to the DWP. On appeal, Ledbetter contends that the court lacked authority to include the DWP's cost of the investigation in the restitution order.   We agree and modify the judgment to strike the amount of investigation costs from the restitution order.

FACTS AND PROCEEDINGS BELOW

While executing a search warrant at Ledbetter's home the police found a room containing 100 marijuana plants and a considerable amount of processed marijuana.   The police also noticed that two small holes had been drilled into the plastic casing that covered the electric utility meter.   At trial, Robert Putnam, an investigator employed by the DWP, testified that the holes enabled a person to manipulate the meter's dials to reflect less electricity usage than what had actually occurred.   Based on a review of Ledbetter's electric bills and an examination of the electrical equipment and appliances in his home Putnam estimated that Ledbetter had used $619.20 worth of electricity that he did not pay for.   Putnam testified that, in addition to the lost revenue from the stolen electricity, the DWP incurred $884 in “investigation expenses.”

A jury convicted Ledbetter of one count of marijuana cultivation, one count of possession of marijuana for sale and one count of theft of utility services.   On the latter count the court sentenced Ledbetter to six months in jail and ordered him to pay restitution to the DWP in the amount of $1,503.20, consisting of $619.20 for the stolen electricity and $884 for the agency's “investigative costs.”   Ledbetter filed a timely notice of appeal.

DISCUSSION

I. LEDBETTER DID NOT FORFEIT HIS CHALLENGE TO THE

INVESTIGATIVE COSTS PORTION OF THE RESTITUTION ORDER

The Attorney General argues that Ledbetter forfeited his challenge to the portion of the restitution order covering DWP's investigative costs because he failed to object to that portion of the order in the trial court.   The challenge was not forfeited.   Ledbetter is not challenging the amount of the investigative costs, a matter within the trial court's discretion.  (Cf. People v. Scott (1994) 9 Cal.4th 331, 353.)   He is challenging the court's authority to impose any investigative costs at all.   A challenge to an unauthorized sentence—one that could not lawfully be imposed under any circumstances in the particular case—is not forfeited by failing to raise it in the trial court.  (Id. at p. 354.)

II. THE COURT LACKED AUTHORITY TO ORDER LEDBETTER TO REIMBURSE THE DWP FOR ITS INVESTIGATIVE COSTS

Penal Code section 1202.4, subdivision (f) states in relevant part:  “[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 or victims in an amount established by court order ․” Section 1202.4, subdivision (k) states that a “victim” for purposes of the statute includes a governmental agency or instrumentality “when that entity is a direct victim of a crime.”   It is undisputed that the DWP is a governmental agency or instrumentality for purposes of the restitution statute.

It is well-settled that “[u]nder the relevant case law and the statutory scheme, public agencies are not directly ‘victimized’ for purposes of restitution under Penal Code section 1202.4 merely because they spend money to investigate crimes or apprehend criminals.”  (People v. Ozkan (2004) 124 Cal.App.4th 1072, 1077 and see cases cited at pp. 1076–1077.)   The rule is not limited to law enforcement agencies such as police departments.   In Ozkan, for example, the defendant engaged in a scheme to sell regular grade gasoline as higher priced midgrade and premium gasoline.   The trial court found the direct victims of this fraud included the Board of Equalization, to which taxes were due.   The defendant was convicted of fraud and filing false and fraudulent sales and use tax returns, and ordered to pay restitution to the Board of Equalization for unpaid taxes, penalties and interest.   The court declined, however, to order the defendant to pay for the agency's investigative costs and this ruling was upheld on the People's appeal and approved by our Supreme Court in People v. Martinez (2005) 36 Cal.4th 384, 393, footnote 1.1

The case relied on by the People, In re Johnny M. (2002) 100 Cal.App.4th 1128, is inapposite because it dealt with reimbursement for cleanup costs after a burglary, not investigative costs.

DISPOSITION

The restitution order is reduced to the sum of $619.20 and the judgment is affirmed as modified.   The clerk of the Superior Court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Although Putnam testified that expenses associated with electricity theft could include the cost of replacing the electric meter and lock, he described the $884 as “investigation expenses.”.  FN1. Although Putnam testified that expenses associated with electricity theft could include the cost of replacing the electric meter and lock, he described the $884 as “investigation expenses.”

CHANEY, J. JOHNSON, J.