It is a common misperception that if one receives stolen property, such as a credit card, one can use it without incurring criminal liability if he or she has a good faith belief that the credit card was a gift. After all, the recipient of the card did not steal it from anyone. This is not always so, as the recent decision in People v. Holmberg
from Northern California shows (People v. Jon Holmberg
(2011 DJDAR 7665).
The Gist of This Article: Sometimes, the recipient of stolen property, such as stolen credit cards from a store burglary, can owe restitution to the victim of the theft even though the recipient did not participate in the burglary.
In May, 2008, someone burglarized a store in the city of San Jose, California. The burglar(s) stole credit cards, a small amount of cash, eight computers and a few computer monitors.
Later that day, Jon Holmberg used one of the credit cards at a Taco Bell and a 7-Eleven. The next day, the same credit card was used at two Target stores. Defendant and his girlfriend appeared on surveillance videos of the transactions at Target. Three days later, he used another one of the stolen credit cards to pay his sister’s cell phone bill.
About a month later, Holmberg logged onto the Internet using one of the computers. Software in the computer caused it to log onto the store’s network and the store was then able to examine the stolen computer’s hard drive remotely, finding the resume of Holmberg’s sister, with her address on it.
About three weeks later, the San Jose Police Department executed a search warrant at the address on the resume, Holmberg’s home, and found many of the items stolen from the store. Holmberg admitted to using the credit cards and having the stolen computers and later selling them on Craigslist, but denied participating in the burglary. He said a friend brought the computers, credit cards and monitors over to his house about two months earlier. His friend said he received the items from another friend who Holmberg could not identify.
Holmberg was later charged and pled no contest to concealing stolen property (a violation of Penal Code § 496(a)) and using a stolen credit card (a violation of Penal Code § 484g(a) and § 487). The trial court sentenced Holmberg to two years in state prison with credit for 733 days served already and ordered that he pay various fines and fees, plus $18,182 in restitution. The amount was arrived at by the victim’s account of lost hardware, IT labor and lost business over a week’s period when employees worked to recover lost information from the computers.
Holmberg appealed the restitution award, arguing that the award was improper because the victim’s damages were due to the burglary of the store, not his possession of the computers, monitors and use of the credit cards. In other words, Holmberg argued that the victims’ damages were not proximately caused by his conduct. He also argued that he had no duty to return the property.
The Sixth Appellate District disagreed with Holmberg, noting that Holmberg’s criminal conduct in concealing the stolen property was a substantial factor in depriving the owners of its use. The Court pointed to the fact that Holmberg received the property the same day it was stolen and nothing stopped him from turning over the known stolen items to the police.
Consequently, the Court found that Holmberg’s role was much more than negligible or theoretical in depriving the victims of their property. As such, the award properly met the standard of Penal Code § 1202.4(f)(3), which allows the court to set a restitution award of a dollar amount that is sufficient to reimburse the victims of the economic loss incurred that is caused by defendant’s criminal conduct.
Section 1202.4 is the legislative enactment of the 1982 Victim’s Bill of Rights, then known also as Proposition 8, which established the right of crime victims to receive restitution directly from persons convicted of crimes for losses they suffer.
Holmberg’s argument thus was rejected by the Appellate Court and he was ordered to pay the $18,182 in restitution ordered.
The permanent cite for the appellate court opinion is People v. Jon Holmberg (2011) 195 Cal.App.3d 1310.
For more information about restitution issues, click on the following articles:
- Restitution Order in Federal Court Improper When Calling for Immediate Payment
- In Juvenile Vandalism Case Involving Graffiti, Restitution Cannot Include Investigation Costs
- Restitution Award in DUI Case Reversed and Vacated Because Trial Court’s Calculation Not Rational
Greg Hill & Associates