Goss

Statement of the Case

Appellant stands convicted, following a jury trial, of attempted burglary (Pen. Code, §§ 663, 459). He was placed on probation for 2 years; as a condition of probation he was ordered to serve 300 days in the county jail and to make restitution in the amount of $150. He has appealed the conviction, contending that the trial court erred by failing to suppress evidence of statements appellant made to law enforcement officers. Appellant argues that evidence of both his statements to sheriffs officers was inadmissible under People v. Hitch (1974) 12 Cal.3d 641 [ 117 Cal.Rptr. 9 , 527 P.2d 361 ], because a tape recording of one of the statements was erased by a secretary at the sheriffs department. Appellant also contends the court erred by requiring him to make restitution in the amount of $150 as a condition of probation.

The Facts

On the night of June 11-12, 1977, as Mr. Robert Swanberg was preparing to go to bed in his Visalia home, he heard something which sounded like the prying apart of wood. A few minutes later, Swanberg went outside to investigate. He followed the sound to one of the new, unoccupied houses in the subdivision where Swanberg saw…