1

Filed 8/15/14 P. v. McGuire CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DENNIS McGUIRE,

Defendant and Appellant.

A136002

A137702

(San Francisco County

 Super. Ct. Nos. 216405, 217293)

Defendant Dennis McGuire appeals from judgments of conviction entered after he 

pleaded guilty to grand theft (Pen. Code, § 487, subd. (a)1) and second degree burglary 

(§ 459) in two cases. The charges related to incidents concerning the alleged theft and 

attempted theft of copper wire from two victims. With the assistance of counsel, 

defendant entered into plea agreements with the prosecution to resolve the charges in 

both cases. The court promised to place defendant on probation for three years, with 

several court-ordered conditions including payment of victim restitution for the 

replacement and repair of the copper wire. At sentencing, the court directed defendant to 

pay $13,208.23 to “City and County of San Francisco, Municipal Railway” and $6,989 to 

“U-Haul.” Defendant paid the court-ordered victim restitution, and then sought to 

withdraw his guilty pleas on the grounds that he was not sufficiently apprised of the 

aggregate amount of victim restitution at the time he entered his pleas, and, in all events, 

he was deprived of a hearing to challenge the amount of victim restitution. The court 

denied defendant’s motion to withdraw his guilty pleas, but ruled that defendant could 

 

1 All further unspecified statutory references are to the Penal Code.
2

challenge the amount of victim restitution. After an evidentiary hearing, the court 

confirmed defendant was required to pay the amount of victim restitution previously 

ordered in both cases. 

On appeal, defendant challenges the trial court’s denial of his motion to withdraw 

his guilty pleas and the awards of victim restitution. We conclude defendant’s arguments 

are without merit, and accordingly, we affirm. 

FACTS

2

A. Background

1. Municipal Railway Case

In August 2011, defendant and two accomplices stole over 400 feet (about the 

length of a city block) of copper wire owned by the City and County of San Francisco

(hereafter also referred to as the city). The copper wire was kept in an underground 

structure, and used to power the overhead cables supplying electricity to municipal

railway buses. At the preliminary hearing, San Francisco Police Officer Alvaro Schor

testified that Patrick Cantwell, the coordinator for the city’s municipal railway

underground lines, provided an initial estimate of “at least $10,000” for replacing the 

copper wire, including labor costs. After the defendant was held to answer, an 

information was filed charging him with the felony offenses of grand theft of personal 

property (copper wire exceeding $950 belonging to “City and County of San Francisco”) 

(§487, subd. (a)), receiving or buying stolen property belonging to “City and County of 

San Francisco” (§ 496, subd. (a)), vandalism of copper wire belonging to “City and 

County of San Francisco” causing damages of more than $400 (§ 594, subd. (b)(1)), and 

second degree burglary of a commercial building (underground utility service area

occupied by “City and County of San Francisco”) (§ 459). 

 

2 We set forth only those facts that are necessary to resolve the issues defendant 

raises on these appeals. Because defendant pleaded guilty, the facts regarding the 

incidents giving rise to the charges filed against him are taken from the testimony 

presented at the preliminary hearings and the magistrate’s findings made after those 

hearings. 
3

2. U-Haul Case

In January 2012, while defendant was out of custody on bail in the Municipal 

Railway case, he and two other accomplices attempted to steal copper wire from the roof 

of a storage unit at a U-Haul personal storage facility in San Francisco. The copper wire

(one piece about 100 feet and a second piece about 30 to 40 feet) was “ground” wire used 

for cell site equipment owned by Verizon. Verizon paid a monthly lease fee to use the UHaul facility. The police apprehended defendant and his accomplices after seeing them 

drag the copper wire to their car and then reenter the U-Haul facility. At the preliminary 

hearing, San Francisco Police Officer Bayardo Roman testified that a technician 

employed by Much Less Electric opined that it would cost “$8700” to repair and replace 

“conduit pipe and wiring,” and “we’re entitled to replace the whole 100 feet of wiring 

that was cut from that location.” The technician’s estimate took into consideration that 

approximately 30 feet of the 100-foot copper wire could be salvaged. The estimate did 

not include costs associated with the loss of the smaller copper wire, which had been 

booked into evidence by the police. After defendant was held to answer, an information 

was filed charging him with the misdemeanor offense of possession of burglar tools 

(§ 466) and the felony offenses of second degree burglary (commercial building occupied 

by “U-Haul”) (§ 459) and vandalism (damages of more than $400 – copper wire housing 

and pavement conduits belonging to “U-Haul”) (§ 594, subd. (b)(1)).

B. Change of Plea and Sentencing Proceedings

Separate change of plea hearings were held at which defendant pleaded guilty to 

grand theft in the Municipal Railway case and second degree burglary in the U-Haul 

case. In reciting the terms of the plea agreements in open court, defense counsel stated

defendant would pay restitution “to the victims” in each case “as determined by the Adult 

Probation Department.”

3

 

 

3 Before the change of plea proceedings, the adult probation department filed a 

report considering only the theft of the copper wire in the Municipal Railway case. In 

describing the incident, the probation department officer noted that the stolen wire was 

“valued at approximately $10,000.” There was no description of the incident related to 
4

At sentencing encompassing both cases, and as agreed, the court suspended 

execution of an aggregate term of five years in state prison and imposed probationary 

terms of three years. The district attorney also proffered two CR-110 form orders setting 

forth requested victim restitution sought in each case - $13,208.23 to “City and County of 

San Francisco, Municipal Railway,” and $6,989 to “U-Haul.”

4

 Each order indicated the 

amount of restitution “includes . . . value of property stolen or damaged.” Defendant 

asked the court for an opportunity to dispute the aggregate amount of victim restitution

having received the restitution orders just shortly before sentencing. The prosecutor 

acknowledged defendant’s right to a restitution hearing, but noted the restitution orders 

were filed with “receipts show[ing] one of the losses was municipal county property

[and] the other was copper wire from a Verizon location at U-Haul.”5 

C. Post-Judgment Proceedings

Instead of immediately seeking a restitution hearing, defendant paid the courtordered victim restitution and then filed a motion, later amended, to withdraw his guilty

 

the attempted theft of copper wire in the U-Haul case. The probation department officer 

stated that on the matter of victim restitution, “the amount of restitution cannot be fixed 

because necessary information is lacking or a subsequent hearing is needed to resolve a 

dispute about the amount.” In the “recommendation” portion of the report, the probation 

department officer recommended that defendant “[p]ay restitution to the victim in the 

amount of $ TBD or in an amount and manner to be determined by the Court plus a 15% 

administrative fee.” 

4 At the sentencing hearing when the court stated restitution was to be paid to 

“Linco Electric,” the prosecutor indicated Linco Electric was related to the loss at the UHaul facility, and the court’s signed order of restitution directed defendant to make 

restitution to “U-Haul.” 

5

The CR-110 form ordering restitution of $13,208.23 to “City & County of SF, 

Municipal Railway,” had attached a May 4, 2012, statement from the city for “[w]ire 

replacement [r]epair of wire . . . reported stolen on 8/24/11.” The copper wire 

replacement and repair costs included $4,530.96 for material and supplies plus sales 

taxes; $4,458.29 for overhead costs; $3,218.98 for direct labor and fringe benefits, and 

$1,000 for the use of equipment for 20 hours. The CR-110 form ordering restitution of 

$6,989.00 to “U-Haul” had no attached receipt concerning the amount requested by UHaul. 
5

pleas. 6 In support of his motion to withdraw, defendant argued he “suffered harsher 

sentences than what was called for by the global plea bargain because the restitution 

amounts that have been imposed upon [him] pursuant to his plea bargain are without 

merit.” Defendant asserted, in pertinent part, that (1) the city’s cost estimate attached to 

the CR-110 form order failed to account for the value of recovered copper wire; (2) there 

was no supporting document attached to CR-110 form order justifying the amount of 

restitution awarded to U-Haul, and (3) there was no victim that needed to be made whole 

in the U-Haul case. The prosecutor urged the court to deny defendant’s motion to 

withdraw, arguing that defendant had failed to demonstrate any basis to support his 

expectation that the restitution orders would be less than what was actually imposed by 

the court, and defendant had been advised at sentencing of his right to contest the 

accuracy of the restitution awards but he failed to do so. 

After a hearing on December 10, 2012, the trial court denied defendant’s motion 

to withdraw his guilty pleas, but ruled that defendant could challenge the actual sums to 

be paid as victim restitution. 

D. Victim Restitution Proceeding 

On April 12, 2013, defendant filed separate motions challenging the victim 

restitution awarded in both cases. As to the restitution awarded in the Municipal Railway

case, defendant argued that “the value of the stolen and recovered copper wire – which 

was not damaged – was significant,” and he was entitled to offset the city’s replacement 

and repair costs by the amount of proceeds earned when the city sold the salvaged copper 

wire. As to the restitution awarded in the U-Haul case, defendant argued U-Haul had not 

suffered an economic loss and/or property damage as a result of defendant’s criminal 

 

6

Pursuant to the change of plea agreements, defendant also asked the court to 

vacate the execution-suspended aggregate sentence of five years in state prison and 

impose an execution-suspended aggregate sentence of three years in state prison on the 

ground he had paid court-ordered victim restitution in full. The court granted defendant’s 

request and resentenced him by suspending execution of an aggregate term of three years 

in state prison and reimposed the probationary terms of three years. Defendant’s 

probation terms were later revoked and he was resentenced to an aggregate term of three 

years in county jail. 
6

conduct because (1) the copper wire belonged to Verizon, and (2) U-Haul merely 

received a monthly lease fee from Verizon for its use of the U-Haul facility. 

At a hearing held on July 15, 2013, the prosecutor presented no witnesses or 

documentary evidence beyond the CR-110 form orders. The defense case began by 

counsel informing the court “by way of background” that at issue was defendant’s 

challenge to (1) “a CR-110 form . . . filed on June 20th, 2012, ordering restitution to the 

victim U-Haul in the amount of $6989” and (2) “a CR-110 [form] . . . filed on June 20th, 

2012, ordering restitution payable to the victim San Francisco Municipal Railway in the 

amount of $13,208.23.” 

1. Municipal Railway Case

The defense called two witnesses, Timothy Lipps, a superintendent in the city’s

Municipal Railway Overhead Line Department, and Alex Shimada, the operations 

manager at the San Francisco facility of Sims Metal Management (SMM). 

Lipps testified that, at the request of the district attorney’s office, he prepared a job 

cost form, estimating a total loss of $13,208.23,for the replacement of the underground 

copper wire that was stolen on August 24, 2011. The estimate included $4,176 for the 

cost of replacing 450 feet of copper wire that was cut from the municipal railway’s

underground lines. All of the copper wire was required to be replaced as a safety 

measure. In preparing the cost estimate, Lipps did not include “any credit for any profit 

that was garnered from selling the cut damaged copper wire.” 

Lipps believed that the day after the August 24, 2011, incident, the damaged

copper wire was placed in a scrap metal bin at a municipal railway facility on Bryant 

Street. When asked if he was aware of any other sizeable copper wire discards by 

municipal railway facilities between August 24, 2011 and April 24, 2012, Lipps replied, 

“There could have been. It’s not unusual,” but he did not recall any specifically at the 

time of the hearing. The city contracted with a private scrap metal company to retrieve 

scrap metal from bins at municipal railway facilities. Lipps believed the name of the 

scrap metal company was Cirscosta, but he was not actually sure because “[w]e just 

changed.” The private scrap metal company did not come at a set time but only when 
7

called by someone from a municipal railway facility. Lipps believed he might have given 

defense counsel records concerning when he (Lipps) called the private scrap metal 

company in late August or September of 2011. 

Shimada testified SMM had a contract with San Francisco, during the period from 

August 2011 through April 2012, to recycle scrap metal from different municipal 

departments when facility staff called for a pick up. The scrap metal was weighed when 

it got to SMM’s facility. Shimada knew of only two sizeable pickups of copper wire at a 

municipal railway facility in the time period following August 24, 2011, “one was in 

October and the other was in April.” Between August 24, 2011 to September 26, 2011, 

there was no pickup of copper from a municipal railway facility. Shimada identified a 

“purchase ticket” dated September 26, 2011, which showed that on that date there was a 

pickup from the municipal railway facility at Bryant Street that included copper wire 

weighing 290 pounds. The city was reimbursed the sum of $1,006.88 for that copper 

wire. However, as to the bin that was picked up on September 26, 2011, Shimada did not 

know the bin size, how many days it took to fill the bin, how many different municipal 

railway projects could have contributed to the scrap copper wire in the bin, or whether

“the scrap copper that defense [counsel] had been asking about” was even included in the 

bin. 

2. U-Haul Case

The defense called one witness, Joe Krueger, president of the U-Haul Company of 

California. Krueger testified he was at the U-Haul facility on January 4, 2012, after 

defendant attempted to steal copper wire from that facility. Krueger did not recall if there 

was any specific damage to any U-Haul property other than “a cable damaged[,] . . .

[¶] . . . the one [defendant] cut.” When asked if the cut copper wire was the property of 

U-Haul, Krueger replied, “it’s part of a Verizon cell tower, and it’s all part of a lease, and 

I can’t speak on how the lease terms are written.” Krueger did not know if the cut copper 

wire had been installed by U-Haul or by Verizon, but it was possible Verizon installed it. 

After the incident, Krueger called an electrician to estimate the cost of fixing the cut 

copper wire. Krueger did not personally call the electrician to repair the cut copper wire 
8

but someone from Krueger’s office or U-Haul may have done so. Krueger did not know 

if any U-Haul employee had requisitioned any repair or replacement of the cut copper 

wire. When asked if U-Haul had repaired or replaced the cut copper wire, Krueger

stated, “The cable is repaired,” but he did not know who repaired the cut copper wire or 

paid for the repair. Krueger also did not know if anyone from U-Haul had submitted a 

claim to the district attorney’s office for the repair of the cut copper wire. On crossexamination, Krueger confirmed the cut copper wire was actually repaired as it was a 

grounding cable from the cell tower to the earth and its repair was a safety issue. On 

redirect, Krueger conceded he did not know if the cut copper wire was actually used by 

Verizon because he could not speak to the technical specifications of the cell tower’s 

operation. In response to the court’s questions as to whether in the course of business

documents concerning the repair would have crossed his desk, Krueger replied, “The 

lease is done through America Real Estate, which is out of our corporate office. They are 

the ones that actually own the building. [¶] So it’s entirely possible that Verizon said to 

America Real Estate, can you get this taken care of, and America Real Estate would have 

called out someone to get it fixed and paid for it, since we are the landlord of it. So it’s 

possible that it could have been fixed and paid for by America Real Estate or U-Haul, and 

I would never see it.” 

After the evidentiary hearing, the parties submitted written memorandum in lieu of 

closing arguments, as requested by the court. Defendant’s post-hearing memorandum

addressed both restitution orders. In the Municipal Railway case, defendant asked the 

court to exercise its discretion and reduce restitution by at least $1,006.88, representing 

the sum reimbursed to the city for the copper wire picked up by SMM at the Bryant 

Street municipal railway facility on September 26, 2011. According to defendant, the 

city’s recoupment of “substantial funds” for the discarded copper wire constituted 

“ ‘compelling and extraordinary’ circumstances” allowing for a deviation from a strict 

calculation of the replacement cost incurred by the city. In the U-Haul case, defendant

asked the court to vacate the order of restitution because it “was erroneous insofar as it 

names U-Haul as the victim . . entitled to restitution.” Defendant asked the court to 
9

“retain jurisdiction” in the event that an actual victim came forward and requested 

restitution in the U-Haul case.

The prosecutor opposed defendant’s request to modify or vacate the orders of

restitution. In the Municipal Railway case, the prosecutor argued defendant was not 

entitled to an offset for the scrap value of the recovered copper wire, and assuming 

defendant was entitled to such an offset, he had failed to establish the value of the

recovered copper wire at the July 15 hearing. In the U-Haul case, the prosecutor argued 

that at the July 15 hearing defendant failed to present any evidence that the cost of 

repairing the damaged copper wire was less than the amount awarded by the court. 

On August 20, 2013, the trial court, after reviewing its notes from the July 15 

hearing and the parties’ written memoranda, denied defendant’s requests and confirmed 

the victim restitution orders without further comment. 

DISCUSSION

I. Defendant’s Motion to Withdraw His Guilty Pleas

Defendant challenges the denial of his motion to withdraw his guilty pleas, 

arguing that the trial court imposed restitution orders significantly in excess of the 

amounts contemplated by the plea agreements. We disagree. The plea agreements stated 

defendant was to pay victim restitution and no promise was made as to the amount of 

victim restitution. Additionally, the evidence admitted at the preliminary hearings and 

the charges in the informations put defendant on notice that he might have to pay victim

restitution to the “City and County of San Francisco” and “U-Haul” (named victims in 

the informations) and the victims had initially estimated their losses were “at the least 

$10,000” and “$8,700,” respectively. Unlike the situations in People v. Walker (1991) 54 

Cal.3d 1013, 1026, and People v. Brown (2007) 147 Cal.App.4th 1213, 1218-1219, cited 

by defendant, the trial court here could reasonably find the aggregate principal sum of 

$20,197.23, ordered to be paid as victim restitution, was not significantly different from 

the victims’ initial estimated losses. Defendant cites nothing in the record supporting his 

argument that at the time of the plea agreements he contemplated that victim restitution 

would be significantly less than the actual awards because he would receive credit for the 
10

value of any salvaged copper wire in the Municipal Railway case and there was no victim 

in the U-Haul case. Consequently, we reject defendant’s contention that he is entitled to 

withdraw his guilty pleas and obtain a refund of the paid victim restitution. 

II. Victim Restitution Awards

Defendant presents substantive arguments challenging the victim restitution

orders, none of which requires reversal.

In this case we are concerned with the imposition of victim restitution as a 

condition of probation pursuant to section 1203.1 That section permits trial courts to 

“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).)” (People v. Anderson (2010) 50 Cal.4th 19, 26 (Anderson).) As 

explained by our Supreme Court in People v. Giordano (2007) 42 Cal.4th 644: “While 

we review all restitution orders for abuse of discretion, we note that the scope of a trial 

court’s discretion is broader when restitution is imposed as a condition of probation. . . .

‘[A] condition of probation will not be held invalid unless it “(1) has no relationship to 

the crime of which the offender was convicted, (2) relates to conduct which is not itself 

criminal, and (3) requires or forbids conduct which is not reasonably related to future 

criminality . . . .” ’ ([People v.] Lent [(1975)] 15 Cal.3d [481,] 486.) With respect to the 

third criterion, ‘an order of restitution, i.e., attempting to make a victim whole, has 

generally been deemed a deterrent to future criminality [citation], and the court is not 

limited to the transactions or amount of which defendant is actually convicted 

[citations].’ (Ibid.) Probationary restitution may be imposed even if a defendant has not 

been convicted for a particular offense ‘because probation is an “ ‘ “act of clemency and 

grace,” ’ ” not a matter of right. [Citation.] “[T]he granting of probation is not a right but 

a privilege, and if the defendant feels that the terms of probation are harsher than the 

sentence for the substantive offense[,] he is free to refuse probation.” [Citations]. 

Because a defendant has no right to probation, the trial court can impose probation 
11

conditions that it could not otherwise impose, so long as the conditions are not invalid 

under the three Lent criteria.’ ” (Giordano, supra, at p. 663, fn. 7.) 

A. Municipal Railway Case

In challenging the victim restitution awarded in the Municipal Railway case, 

defendant argues the trial court abused its discretion in failing to give him credit for the 

salvage value of the recovered wire that was required to be replaced as a consequence of 

his criminal conduct. We disagree. Relying on isolated portions of the testimony of 

Lipps and Shimada, defendant argues the trial court should have found that the stolen 

wire was placed in the scrap bin at the Bryant Street municipal railway facility in late 

August 2011 and that it was the only copper wire in the bin that was later picked up on 

September 26, 2011 and for which the city received $1,006.88. However, neither Lipps 

nor Shimada testified that the bin contained only the copper wire stolen by defendant and

that the payment to the city was only for copper wire stolen by defendant. Thus, the trial 

court could reasonably find that any offset for the value of the salvaged stolen copper

wire would be entirely speculative. Consequently, we reject defendant’s argument that 

trial court abused its discretion in confirming the victim restitution awarded in the 

Municipal Railway case. 

B. U-Haul Case

In challenging the victim restitution awarded in the U-Haul case, defendant argues 

the evidence at the evidentiary hearing was insufficient to show that U-Haul had incurred 

any economic loss or needed reimbursement as a result of defendant’s criminal conduct. 

We disagree. Joe Krueger testified that U-Haul had secured an estimate for the repair of 

the copper wire damaged by defendant and the copper wire was required to be and 

actually was repaired. Together with Krueger’s additional testimony concerning the 

relationship between Verizon and America Real Estate (the entity “out of U-Haul’s 

corporate office,” which actually owned the property on which the U-Haul facility was 

located), the trial court could reasonably infer that U-Haul, pursuant to its duties as a 

landlord, had assumed financial responsibility for the repair and thereby suffered an 
12

actual, compensable loss. 7 Defendant’s reliance on other portions of Krueger’s 

testimony to support a contrary finding is not persuasive. As the trier of fact, the trial 

court was free to accept those portions of Krueger’s testimony and draw any reasonable 

inferences therefrom, to support its ruling, while rejecting other portions of the witness’s 

testimony even though the latter testimony may have contradicted the portions accepted 

by the court. (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67.) Despite 

defendant’s argument to the contrary, we see nothing in People v. Jones (2010) 187 

Cal.App.4th 418, 424-425, that requires a different result. 

Defendant’s challenge to the amount of restitution awarded to U-Haul is not 

properly before us. In support of his motion to withdraw his guilty pleas, defendant 

argued the CR-110 form order awarding restitution of $6,989 to U-Haul failed to include 

any documentation justifying the amount. However, at no time during the restitution 

proceeding did defendant raise an objection to the amount of restitution awarded to UHaul. “[B]y his failure to object, defendant “forfeited any claim that the order was 

merely unwarranted by the evidence . . . .” (People v. Brasure (2008) 42 Cal.4th 1037, 

1075 (Brasure); see Anderson, supra, 50 Cal.4th at p. 26, fn. 6 [“[d]efendant has waived 

a claim of error as to the amount of restitution by failing to object on that ground in the 

trial court”].) We reject defendant’s argument that his objection to awarding any 

restitution to U-Haul was sufficiently broad enough to encompass a challenge to the 

value placed on the repair of the cut copper wire. If defendant had objected to the 

amount of restitution, the prosecutor could have presented evidence addressing the issue. 

“The appropriate amount of restitution is precisely the sort of factual determination that 

can and should be brought to the trial court’s attention if the defendant believes the award 

is excessive.” (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.) Because the U-

 

7

“ ‘California law requires landowners to maintain land in their possession and 

control in a reasonably safe condition. [Citations.] In the case of a landlord, this general 

duty of maintenance, which is owed to tenants and patrons, has been held to include the 

duty to take reasonable steps to secure common areas against foreseeable criminal acts of 

third parties that are likely to occur in the absence of such precautionary measures.’ ” 

(Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146.)
13

Haul order of restitution in the sum of $6,989 was “within the sentencing court’s 

statutory authority,” and defendant never raised an objection to the actual amount at any 

time during the restitution proceeding, “we do not decide whether the court” erred in 

confirming the amount awarded as restitution to U-Haul. (Brasure, supra, at p. 1075; see 

Anderson, supra, at p. 26, fn. 6.)

DISPOSITION

The judgments of convictions, orders denying defendant’s motion to withdraw his 

guilty pleas, orders of victim restitution, and orders denying defendant’s motion to 

modify or vacate the orders of victim restitution, are affirmed. 

_________________________

Jenkins, J.

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Siggins, J.