State v. Leano-Castro

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-DEC-2023
08:01 AM
Dkt. 71 SO

NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
JORDAN LEANO-CASTRO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Guidry, JJ.)

In this consolidated appeal, Defendant-Appellant Jordan

Leano-Castro (Leano-Castro) appeals from the October 13, 2021

Judgment of Conviction and Probation Sentence; Notice of Entry

(Judgment of Conviction) and the March 14, 2022 Order Denying

Defendant's Motion to Correct Illegal Sentence (Order Denying

Motion to Correct), entered by the Circuit Court of the First

Circuit (Circuit Court).1 Leano-Castro challenges, inter alia,

the November 9, 2021 Free Standing Order of Restitution

(Restitution Order).

1
The Honorable Rowena A. Somerville presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

On October 13, 2021, Leano-Castro was convicted of

Unauthorized Entry into Motor Vehicle in the First Degree

(Unauthorized Entry), in violation of Hawaii Revised Statutes

(HRS) § 708-836.5 (2014).2 The Circuit Court initially sentenced

Leano-Castro to four (4) years probation, subject to

mandatory/special conditions, including: (1) serve one year in

jail, with credit for time served, subject to early release into

a residential substance abuse treatment program; (2) pay $816.23

in restitution; and (3) "zero tolerance" probation.3 After

various post-sentencing developments and proceedings, on January

19, 2023, the Circuit Court issued an Order of Resentencing

Revocation of Probation; Notice of Entry (Order of Resentencing),

resentencing Leano-Castro to four (4) years probation, subject to

special conditions, including: (1) serve a term of imprisonment

of one year, with credit for time served, subject to early

release upon Leano-Castro's acceptance and entry into a

2
HRS § 708-836.5 states:

§ 708-836.5 Unauthorized entry into motor vehicle in
the first degree. (1) A person commits the offense of
unauthorized entry into motor vehicle in the first degree if
the person intentionally or knowingly enters or remains
unlawfully in a motor vehicle, without being invited,
licensed, or otherwise authorized to enter or remain within
the vehicle, with the intent to commit a crime against a
person or against property rights.
(2) Unauthorized entry into motor vehicle in the first
degree is a class C felony.
3
The October 13, 2021 Judgment of Conviction contains 21 special
conditions of probation.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

residential substance abuse program, and (2) pay a free standing

order of restitution in the amount of $816.23.4

In these consolidated appeals, Leano-Castro raises two

points of error, contending that the Circuit Court erred in: (1)

ordering restitution because Leano-Castro did not scratch the

driver's door as claimed by the complaining witness (CW); and (2)

denying Leano-Castro's motion to correct his initial sentence.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Leano-Castro's points of error as follows:

(1) Leano-Castro asserts that there is insufficient

evidence to order him to pay $816.23 in restitution under HRS §

706-646 (Supp. 2022).5 Generally, a court shall order a

4
The Honorable Trish K. Morikawa presided.
5
HRS § 706-646 states, in pertinent part:

§ 706-646 Victim restitution.
. . . .
(2) The court shall order the defendant to make
restitution for reasonable and verified losses suffered by
the victim or victims as a result of the defendant's offense
when requested by the victim. The court shall order
restitution to be paid to the crime victim compensation
commission if the victim has been given an award for
compensation under chapter 351. If the court orders payment
of a fine in addition to restitution or a compensation fee,
or both, the payment of restitution and compensation fee
shall be made pursuant to section 706-651.
(3) [Subsection effective until December 31, 2023
. . . .] In ordering restitution, the court shall not
consider the defendant's financial ability to make
restitution in determining the amount of restitution to
order. The court, however, shall consider the defendant's
financial ability to make restitution for the purpose of
establishing the time and manner of payment. The court
shall specify the time and manner in which restitution is to
(continued...)

3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

defendant to pay restitution for losses suffered by the victim as

a result of the defendant's offense when requested by the victim.

See HRS § 706-646(2). In State v. DeMello, the Hawai#i Supreme

Court affirmed that § 706-646(2) imposes four requirements before

restitution must be awarded, the victim's losses must be: (1)

reasonable, (2) verified, (3) suffered as a result of the

defendant's conduct, and (4) requested by the victim. 136

Hawai#i 193, 196, 361 P.3d 420, 423 (2015). Leano-Castro argues

that the Circuit Court egregiously erred by finding that

requirement (3) was established by a preponderance of the

evidence, and that the evidence presented by the State was

insufficient to meet their burden of proof regarding requirements

(1) and (2).

Here, CW informed responding Honolulu Police Department

(HPD) officers that the scratch was not there prior to Leano-

Castro's unlawful entry, as evidenced by a body-cam video. CW

was away from his vehicle for roughly one-hour and fifteen

minutes. Security camera footage did not capture any other

5
(...continued)
be paid. While the defendant is in the custody of the
department of public safety, restitution shall be collected
pursuant to chapter 353 and any court-ordered payment
schedule shall be suspended. Restitution shall be a dollar
amount that is sufficient to reimburse any victim fully for
losses, including but not limited to:
(a) Full value of stolen or damaged property, as
determined by replacement costs of like
property, or the actual or estimated cost of
repair, if repair is possible;
(b) Medical expenses, which shall include mental
health treatment, counseling, and therapy;
(c) Funeral and burial expenses; and
(d) Lost earnings, which shall include paid leave.

4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

person in the immediate vicinity of CW's vehicle. Although

Leano-Castro elicited evidence that he did not have any tools or

sharp objects on him when he was arrested, "it is within the

province of the trier of fact to weigh the evidence and to assess

the credibility of the witnesses, and this court will refrain

from interfering in those determinations[.]" Ass'n of Apartment

Owners of Wailea Elua v. Wailea Resort Co., 100 Hawai#i 97, 117-

18, 58 P.3d 608, 628-29 (2002) (citation omitted). Viewing the

evidence in the light most favorable to the prosecution, we

conclude that there was sufficient evidence to support an award

of restitution. See State v. Phillips, 138 Hawai#i 321, 352, 382

P.3d 133, 164 (2016); State v. Kelly, CAAP-XX-XXXXXXX, 2020 WL

3124586, *1 (Haw. App. June 12, 2020) (SDO), and State v. Foumai,

CAAP-XX-XXXXXXX, 2018 WL 495679, *1 (Haw. App. Jan. 22, 2018)

(mem. op.).

Leano-Castro further argues that the amount of

restitution ordered by the Circuit Court was not reasonable or

verified because the CW produced only one estimate. Leano-Castro

provides no support for this argument. We conclude it is without

merit.

(2) Leano-Castro argues that the Circuit Court erred

and abused its discretion in denying the motion to correct his

initial sentence, contending that the "zero tolerance" probation

condition was unauthorized and otherwise impermissible. However,

the court later issued the Order of Resentencing on January 19,

5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

2023, without the challenged probation condition. We can no

longer grant effective relief. Therefore, the issue is moot.

See Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d 696,

726 (2007).

Leano-Castro argues the "zero tolerance" condition

qualifies under the "capable of repetition, yet evading review"

exception to the mootness doctrine. However, the fact remains

that the only relief available would be resentencing without that

particular condition, which was done here. We decline to follow

Leano-Castro's hypotheticals as to what might happen under

different re-sentencing circumstances and decline to address such

speculative circumstances in the context of this appeal. Leano-

Castro's arguments that public policy exception and/or the

collateral consequences exception apply are equally unpersuasive.

For these reasons, the Circuit Court's October 13, 2021

Judgment of Conviction and November 9, 2021 Restitution Order are

affirmed; the appeal from the March 14, 2022 Order Denying Motion

to Correct is dismissed as moot.

DATED: Honolulu, Hawai#i, December 12, 2023.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Phyllis J. Hironaka,
Deputy Public Defender, /s/ Clyde J. Wadsworth
for Defendant-Appellant. Associate Judge

Brian R. Vincent, /s/ Kimberly T. Guidry
Deputy Prosecuting Attorney, Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.

6