Honig

*304 Opinion

Defendant Louis (Bill) Honig III appeals from an order of probation entered after a jury found him guilty of four counts of making official contracts in which he had a financial interest in violation of Government Code sections 1090 and 1097. Defendant contends on appeal that the trial court erred in instructing the jury, in excluding certain evidence and in ordering restitution as a condition of probation. He further contends the transactions were grants rather than contracts and thus were beyond the scope of the charged crimes. Finally, he argues that the Attorney General lacked authority to prosecute this action. We conclude that the sentencing court erroneously believed that restitution was mandatory and consequently did not exercise its discretion in determining whether to impose such a condition. We shall set aside the restitution condition and remand the cause to the court for the purpose of exercising its discretion. In all other respects, we reject defendant’s contentions and shall affirm the conviction and order of probation.

Factual Background

In the General Election of November 1982, defendant was elected to the state constitutional office of…

I agree with the majority opinion that the convictions are sound. I disagree concerning the order of probation—specifically, the order of restitution as a condition of probation. In my view, it should be affirmed.

Added to the California Constitution by Proposition 8, a 1982 initiative, article I, section 28, subdivision (b) mandates: “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [

In 1983, the Legislature acted on the constitutional mandate. It enacted former Penal Code section 1203.04, which, in 1993, provided: “In every case where a person is convicted of a crime and is granted probation, the court shall require, as a condition…

Defendant Louis (Bill) Honig III appeals from an order of probation entered after a jury found him guilty of four counts of making official contracts in which he had a financial interest in violation of Government Code sections 1090 and 1097. Defendant contends on appeal that the trial court erred in instructing the jury, in excluding certain evidence and in ordering restitution as a condition of probation. He further contends the transactions were grants rather than contracts and thus were beyond the scope of the charged crimes. Finally, he argues that the Attorney General lacked authority to prosecute this action. We conclude that the sentencing court erroneously believed that restitution was mandatory and consequently did not exercise its discretion in determining whether to impose such a condition. We shall set aside the restitution condition and remand the cause to the court for the purpose of exercising its discretion. In all other respects, we reject defendant's contentions and shall affirm the conviction and order of probation.

In the General Election of November 1982, defendant was elected to the state constitutional office of Superintendent of…