NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER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