P. v. Gomez
Filed 7/2/13 P. v. Gomez CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS BANDILLA GOMEZ,
Defendant and
Appellant.
H037792
(Monterey
County
Super. Ct.
Nos. SS101687A,
SS102170A)
In this
appeal, Luis Gomez (appellant) challenges certain victim restitution orders
(Pen. Code, § 1202.4) that were imposed at a combined
plea bargains in two different cases—SS101687A and SS102170A (hereafter 101687A
and 102170A).
title="">[1] For reasons that follow, we affirm the
judgment.
Facts and Proceedings Below
On August
26, 2010, in 101687A, the
County District Attorney filed an 18-count information in which appellant
was charged with one count of second degree robbery (Pen Code, § 211, count
one, victim Juan Arate); two counts of identity theft (§ 530.5, subd. (a),
count two victim Rene Nava, count three victim Armando Nava); seven counts of
commercial burglary (§ 459, counts four and 12 Sears, counts six and eight
K-Mart, count 10 Rite-Aid, counts 14 and 16 Macy's); seven counts of false
personation (§ 529.3, counts five and 13 Sears, counts seven and nine K-Mart,
count 11 Rite Aid and counts 15 and 17 Macy's) and one count of mail theft (§
530.5, subd. (e), count 18, a misdemeanor).
In the information it was alleged that all the counts occurred between
April and June 2010, and that appellant had served two prior prison terms
within the meaning of section 667.5, subdivision (b).
Subsequently,
on February 18, 2011, in 102170A, the Monterey County District Attorney filed
an information in which appellant was charged with three counts of commercial
burglary (§ 459 count one Salinas Valley Ford, count three Pacific Truck Parts
and count five Save Mart); and three counts of submitting fictitious business
checks (§ 476, count two Salinas Valley Ford, count four Pacific Truck Parts,
and count six Save Mart). Again, the
information contained an allegation that appellant had served two prior prison
terms.
On May 4, 2011, appellant entered into a
cases. In 101687A, appellant agreed to
plead no contest to all 18 counts and admit that he had served two prior prison
terms. In 102170A, appellant agreed to
plead no contest to the commercial burglary of Salinas Valley Ford. In exchange for his no contest pleas to both cases,
appellant was promised a state prison term of five years in 101687A and a
consecutive eight month term in 102170A, the court's promise to consider
section 654 issues, and the dismissal of the remaining counts and allegations
in 102170A.
title="">[3]
At a
combined sentencing hearing held on July
8, 2011, the court sentenced appellant to the upper term of three
years on the robbery count in 101687A and concurrent two year terms on the
remaining 16 felony counts. The court
stayed the sentences on the false personation counts pursuant to section 654. In addition, the court imposed two one-year
terms for the two prison priors.
name="_ftnref4" title="">[4] The court ordered that appellant pay various
fines and fees and imposed a victim restitution order to be paid to eight
different entities totaling $36,636.46.
In 102170A, the court imposed an eight month prison term to be served
consecutively to the term imposed in 101687A, and dismissed the remaining
counts and allegations pursuant to the terms of the plea bargain.
in victim restitution to Salinas Valley Ford, $560.35 to Pacific Auto Parts,
$96.34 to Save Mart. The court awarded
$529.14 to Bank of America, but did not specify in which case it was being
awarded.
On September 6, 2011, and again on October 17, 2011, appellant filed
notices of appeal covering both cases and in both instances sought certificates
of probable cause. On January 10, 2012, the court granted a
certificate of probable cause covering both cases.
As noted,
on appeal, appellant challenges certain of the victim restitution awards. Alternatively, if this court deems his
challenge to the victim restitution awards forfeited, he argues that he did not
receive the effective assistance of counsel.
In addition, appellant contends that the abstract of judgment should be
corrected to reflect the restitution fund fine, parole revocation fine, and
victim restitution award to Kohl's as orally announced by the court in 101687A.
Discussion
Victim Restitution
Appellant
argues that more than $30,000 of victim restitution that the court ordered was
unauthorized by governing law and/or unsupported by
"sentencing court awarded victim restitution for uncharged transactions
and the dismissed counts in No. SS102170A totaling more than $30,000. These awards were unauthorized" because
they were based on uncharged conduct or on dismissed counts for which no
was entered, and were inconsistent with the plea bargain. Further, no evidence supports the awards of
victim restitution to Kohl's, G.E. Money Back Sony's Card, and Bank of
America. Moreover, the award of
$22,920.36 to six credit card companies was unauthorized because they were not
"direct victims." Finally, he
contends his right to due process of law was violated by the award of
"tens of thousands of dollars to compensate for conduct not charged or
convicted or admitted."
Alternatively, trial counsel was prejudicially ineffective in failing to
object to the unauthorized awards and failing to object to the awards that were
not supported by substantial evidence.
Respondent
counters that all the restitution claims are forfeited because appellant did
not contest the factual accuracy of the restitution amounts stated in the
probation report or sentencing memorandum.
Governing Law
The trial
court is required to award restitution to a victim who has suffered economic
loss as a result of the defendant's conduct.
(§ 1202.4, subd. (f).)
the victim or victims for every determined economic loss incurred as the result
of the defendant's criminal conduct . . . ." (§ 1202.4, subd. (f)(3).) The restitution amount should be "based
on the amount of loss claimed by the victim or victims or any other showing to
the court." (§ 1202.4, subd.
(f).) To comport with basic due process,
a defendant must be given notice and the opportunity to be heard. (Koshak v. Malek (2011) 200
Cal.App.4th 1540, 1547.) Consistent with
this dictate, the victim restitution statutory scheme provides that the
defendant has the right to a restitution hearing "to dispute the
determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) The statute contemplates that the restitution
amount will be determined at sentencing, unless the amount cannot be
ascertained at that time. (§ 1202.4,
subd. (f); see People v. Holmberg (2011) 195 Cal.App.4th 1310, 1319.)
The defendant's right to
notice and a hearing is protected if the amount claimed by the victim is set forth
in the probation report, and the defendant has an opportunity to challenge the
figures in the probation report at the sentencing hearing. (People v. Cain (2000) 82 Cal.App.4th
81, 86; see People v. Gonzalez (2003) 31 Cal.4th 745, 754-755.)
Generally,
to preserve a restitution issue for appellate review, the defendant must raise
the objection in the trial court. (People
v. Gonzalez, supra, 31 Cal.4th at p. 755; People v. Whisenand (1995)
37 Cal.App.4th 1383, 1395–1396; In re S.S. (1995) 37 Cal.App.4th 543,
547–548.) However, our high court has
"created a narrow exception to the [forfeiture] rule for '
"unauthorized sentences" or sentences entered in "excess of
jurisdiction." ' [Citation.] Because these sentences 'could not lawfully
be imposed under any circumstance in the particular case' [citation] they are
reviewable 'regardless of whether an objection or argument was raised in the
trial and/or reviewing court.'
[Citation.]" (
intervention appropriate in these cases because the errors presented 'pure
questions of law' [citation] and were ' "clear and correctable"
independent of any factual issues presented by the record at sentencing.' [Citation.]
In other words, obvious legal errors at sentencing that are correctable
without referring to factual findings in the record or remanding for further
findings are not [forfeited]." (
Respondent
argues that because "the trial court's factual findings . . . are at the
core of appellant's complaints – then the restitution issue is forfeited by
appellant's failure to object below."
Appellant counters that the issue on appeal is whether the various
restitution awards run afoul of section 1202.4, which among other things, prohibits
the sentencing court from awarding restitution except to victims of the "
'criminal conduct for which the defendant has been convicted.' " Since appellant is not actually quibbling
with the amount of certain awards, but rather is arguing that the majority of
the restitution awards could not have been made in any amount because they were
precluded by the terms of the governing statute, we will address this
issue.
At the
outset we note that appellant's argument that the victim restitution order breached
the plea agreement is not properly before us.
When appellant executed his Waiver Of Rights Plea Of Guilty/No Contest
form in both cases, appellant acknowledged that he had a right to withdraw his
plea if the trial court withdrew its approval of the plea agreement. At sentencing when the trial court indicated
it would order victim restitution and gave the amounts, appellant did not
object that such restitution awards would violate the plea agreement and he did
not move to withdraw his plea on that ground at that time. Having been advised of his right to withdraw
his plea if the trial court did not impose the promised sentence, the trial
court was not required to re-advise appellant of his options or specifically
afford him the opportunity to withdraw his plea at sentencing on the amount of
victim restitution. (People v. Murray
(1995) 32 Cal.App.4th 1539, 1546.)
Consequently, we conclude appellant has forfeited
his appellate claim that some victim restitution
awards violated the plea agreement. (
v. Villalobos (2012) 54
Cal.4th 177, 182.)
In order to
address appellant's remaining arguments it is necessary to set forth in detail
the evidence adduced at the preliminary hearing in 101687A since the
preliminary hearing transcript was designated as the factual basis for the
plea, and the factual background pertaining to how the trial court arrived at
the victim restitution awards.
Officer
Cruz Gonzales testified that on July 10, 2010, at approximately 8 p.m. he was
at Northridge Mall in Salinas when he saw a confrontation in front of the doors
to the J.C. Penney store. Officer
Gonzales saw appellant come out of the door and "there was some pushing
and shoving." Then, he watched as
"a couple [of] people" took off running. The officer detained appellant. Later, the officer spoke to the store's
security officer Michael Edington and was told that appellant attempted to
leave the store with merchandise without paying for it. Edington said that he pursued appellant. As he did so, he saw appellant run toward
another security officer, Juan Zarate, who ended up on the floor. Zarate shouted to Edington that appellant had
pushed him. Edington testified that he
"personally observed the push occur."
Postal
Inspector Thang Bui testified that sometime in June 2010, a Salinas postal
worker notified him of potential mail theft.
Repeatedly, a man with a California's driver's license "bearing his
photo and the name Rene Nava" had asked for mail for a Monroe Street
address both at a Salinas post office and from an on-route mail carrier. The mail this person retrieved included
letters from financial institutions; some letters appeared to contain credit
cards.
Another
man, who called himself Rene Nava and had identification to that effect,
inquired at the Salinas post office as to why he had received notice that his
mail was being forwarded to a Monroe Street address. Subsequently, Inspector Bui learned there had
been fraudulent activity on this man's financial accounts. Armando Nava, Rene's brother "was having
similar problems with identity theft."
Postal
workers were able to copy the driver's license of the man who had represented
that he was Rene Nava, as well as write down his telephone number, vehicle make
and license plate number. Using this
information, Inspector Bui was able to identify appellant as a suspect. After preparing a photographic lineup
containing appellant's photograph, Inspector Bui showed it to two postal
workers; one identified appellant as the person who had come into the post office
and asked for mail for a Monroe Street address, and the other identified
appellant as the person who had approached him on his mail route and asked for
mail for a Monroe Street address.
When
Inspector Bui showed both Rene and Armando Nava a photograph of appellant, they
both denied knowing him or authorizing appellant to conduct any financial
transactions in their names.
As to
counts four, five, 12 and 13, Inspector Bui testified that he determined that
on May 11, 2010, Rene Nava's Citibank issued Sears credit card was reported
stolen and a new card was sent to a residence on Alamo Way that belonged to
appellant's girlfriend. This card was
used to make $2667.55 in transactions at Sears on May 18, 25, and 26, 2010. The transaction that occurred on May 18 was
for an oil change and involved a vehicle and telephone number that Inspector
Bui had previously linked to appellant.
Inspector Bui reviewed surveillance camera footage for the May 18 and 25
transactions that showed a man who appeared to the inspector to be
appellant.
As to
counts six, seven, eight and nine, Inspector Bui investigated transactions that
occurred at K-Mart on May 21 and 23, 2010.
The first transaction was made using Rene Nava's Citibank issued Sears
credit card and was for $325.63. The May
23 transaction was made using Rene Nava's HSBC issued Sears credit card and was
for $407.31. Again, Inspector Bui
reviewed surveillance camera footage for the K-Mart transactions; again they
showed a man who appeared to the inspector to be appellant making the
transactions. Packaging for an item
purchased in the May 23 transaction was found during a search of the residence
belonging to appellant's girlfriend.
As to
counts 14, 15, 16 and 17, Inspector Bui investigated several transactions that
occurred on May 28 and June 1, 2010 at Macy's.
These transactions were made using Armando Nava's credit card and
totaled $2508.34. Again surveillance
camera footage showed a man who appeared to be appellant making these
transaction. Similarly, Inspector Bui
investigated two transactions at a Rite Aid store that occurred on May 23,
2010. These transactions were made using
Rene Nava's GE Money Bank issued Wal-Mart Discover card and totaled $506.54. Again, surveillance camera footage of one of
the transactions showed someone who appeared to be appellant making the
purchases. Items from Macy's were
recovered from the residence of appellant's girlfriend.
When the
trial court asked about specific evidence to support the identity theft counts,
the prosecutor confirmed they were "just kind of a blanket allegation[s]
in regard to the more specific allegations."
As to
102270A, no factual basis for the plea was specified. Accordingly, all we know is that appellant
pleaded no contest to commercial burglary at Salinas Valley Ford.
No
case.
Following
appellant's pleas in both cases, the probation officer's report recommended
that in 101687A appellant pay restitution "to Sears in the amount of
$1008.91, to Kmart in the amount of $732.94, to Rite-Aid in the amount of
$901.95 and to Macy's in the amount of $4,176.55 . . . ." In addition, in 102170A, the probation
officer recommended that appellant pay $872.03 to Salinas Valley Ford.
It appears
that thereafter, at the court's request, the probation officer filed a
Sentencing Memorandum in which the probation officer stated the following:
"The defendant used a Sears Citibank MasterCard belonging to Rene[] Nava,
to make multiple purchases at Sears, Kmart and an on-line purchase. Sears Citibank MasterCard reported a total
loss of $2,667.55. It is requested that
restitution in the amount of $2,667.55 be collected in a manner determined by
the California Department of Corrections and Rehabilitation. [¶]
The defendant made purchases at Kmart in Salinas, California, using a
Sears HSBC MasterCard belonging to Rene[] Nava, in the amount of $407.31. It is requested that restitution in the
amount of $407.31 be collected in a manner determined by the California
Department of Corrections and Rehabilitation.
[¶] The defendant made purchases
at Best Buy Electronics in Salinas, Marina and Gilroy using a Best Buy Credit
Card belonging to Rene[] Nava, in the amount of $4,345.19. It is requested that restitution in the
amount of $4,345.19 be collected in a manner determined by the California
Department of Corrections and Rehabilitation.
[¶] The defendant made purchases
at Macy's in Salinas, Monterey and San Jose, California, using a Macy's card
belonging to Rene[] Nava, in the amount of $1,668.21. It is requested that restitution in the
amount of $1,668.21 be collected in a manner determined by the California
Department of Corrections and Rehabilitation.
[¶] The defendant made purchases
at Macy's in Salinas and Monterey, California using a Macy's card belonging to
Armando Nava, in the amount of $2,508.34.
It is requested that restitution in the amount of $2,508.34 be collected
in a manner determined by the California Department of Corrections and
Rehabilitation. [¶] The defendant made purchases at JCPenney's in
Salinas, California using a JCPenney's card belonging to Rene[] Nava, in the
amount of $3,151.92. It is requested
that restitution in the amount of $3,151.92 be collected in a manner determined
by the California Department of Corrections and Rehabilitation. [¶]
The defendant used a Wal-Mart Discover card belonging to Rene[] Nava to
make multiple purchases at Home Depot, Macy's, Rite-Aid and other miscellaneous
purchases, including at a hair salon.
Wal-Mart Discover Card reported a loss of $4,467.44 for these
accounts. It is requested that
restitution in the amount of $4,467.44 be collected in a manner determined by
the California Department of Corrections and Rehabilitation. [¶]
The defendant used a Wal-Mart Discover Card belonging to Armando Nava to
make multiple purchases at Wal-Mart.
Wal-Mart Discover Card reported a loss of $2,606.29 for these
accounts. It is requested that
restitution in the amount of $2,606.29 be collected in a manner determined by
the California Department of Corrections and Rehabilitation. [¶]
The defendant used a Bank of America MasterCard belonging to Rene[] Nava
to make multiple purchases at Best Buy, Takken Shoes, Macy's and other
miscellaneous purchases, including at a hair salon. Bank of America MasterCard reported a loss of
$7,774.05 for these accounts. It is
requested that restitution in the amount of $7,774.05 be collected in a manner
determined by the California Department of Corrections and Rehabilitation. [¶]
The defendant made purchases at Kohl's Department Store using a Kohl's
credit card issued to Rene[] Nava in the amount of $2,143.44. It is requested that restitution in the
amount of $2,143.44 be collected in a manner determined by the California
Department of Corrections and Rehabilitation.
[¶] The defendant made purchases
at Sony's Electronic Store in Gilroy, California using a GE Money Bank Sony
Credit Card issued to Rene[] Nava in the amount of $4,997.72. It is requested that restitution in the
amount of $4,997.72 be collected in a manner determined by the California
Department of Corrections and Rehabilitation.
[¶] The defendant also wrote
numerous fraudulent checks under the name and account of Rene[] Nava for food
and services received in Monterey County.
The following businesses were identified and are requesting
reimbursement:
Pacific
Auto Parts: $560.35
Salinas
Valley Ford $872.03
Save Mart $96.34
Bank of
America is also requesting restitution in the amount of $529.14 for checks that
were paid to CVS, Grocery Outlet and Foodsco on Bank of America belonging to
Rene[] Nava."
title="">[8]
Based on
the forgoing claims, as noted ante,
the court imposed restitution orders for both cases.
Appellant
argues that the sentencing court awarded victim restitution for uncharged
transactions and the dismissed counts in 102170A totaling more than
$30,000. Appellant contends that these
amounts were unauthorized because the sentencing court had authority to award
victim restitution only for the crimes of conviction. Further, there were no Harvey waivers altering this default rule and the "
'transactionally related' " exception to Harvey does not apply.
Appellant is missing the point.
Case law indicates that losses for purposes of
are not limited to those enumerated in section 1202.4 and must be construed
broadly and liberally to compensate a victim for any economic loss which is
proved to be the direct result of the defendant's criminal behavior. (People v. Moore (2009) 177
Cal.App.4th 1229, 1232; People v. Crisler (2008) 165 Cal.App.4th 1503,
1508.)
For a defendant sentenced to prison,
"[c]ourts have interpreted section 1202.4 as limiting restitution awards
to those losses arising out of the criminal activity that formed the basis of
the conviction." (People v.
Woods (2008) 161 Cal.App.4th 1045, 1049 (Woods); see also People
v. Lai (2006) 138 Cal.App.4th 1227, 1247 [construing "criminal
conduct" language in section 1202.4, subdivision (f)].)
As noted, in Harvey, supra, 25 Cal.3d at page 758,
the court held that "[i]mplicit in . . . a plea bargain . . . is
the understanding . . . that defendant will suffer no adverse sentencing
consequences by reason of the facts underlying, and solely pertaining to,"
dismissed counts, and therefore "it would be improper and unfair to permit
the sentencing court to consider any of the facts underlying . . . dismissed
count[s] . . . for purposes of aggravating or enhancing defendant's
sentence." To avoid the Harvey
restriction, prosecutors often "condition[ ] their plea bargains upon the
defendant agreeing that the sentencing court may consider the facts underlying
the not-proved or dismissed counts when sentencing on the remainder." (People v. Myers (1984) 157 Cal.App.3d
1162, 1167.) Defendants may accept this
relatively minor potential consequence in order to avoid other convictions or
sentencing enhancement terms. (Ibid.) "A Harvey waiver permits the
sentencing court to consider the facts underlying dismissed counts and
enhancements when determining the appropriate disposition for the offense or
offenses of which the defendant stands convicted. [Citation.]" (People v. Munoz, supra, 155
Cal.App.4th at p. 167.)
Nevertheless,
in this case although there was no Harvey
waiver as to the dismissed counts, and certain transactions were not
specifically charged as counts, all the restitution amounts appellant was
ordered to pay arose out of the criminal
activity that formed the basis of his convictions for identity theft. As this court has explained before,
"section 1202.4, subdivision (f)(3) provides that '[t]o the extent
possible, the restitution order . . . shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every determined
the result of the defendant's criminal conduct.' (Italics added.) Interpreting the requirement that the damages
result from the defendant's criminal conduct, the court in People v. Jones
(2010) 187 Cal.App.4th 418, 424–427 . . . (Jones) held that tort
principles of causation apply to victim restitution claims in criminal
cases. The court observed that there
'are two aspects of causation . . . : cause in fact (also called direct or
actual causation), and proximate cause.'
[Citation.] The [
act is a cause in fact if it is a necessary antecedent of an event" ' and
that ' "proximate cause 'is ordinarily concerned, not with the fact of
causation, but with the various considerations of policy that limit an actor's
responsibility for the consequences of his conduct.' " ' [Citation.]" (People v. Holmberg,
1320-1321.) " 'The "but
for" rule has traditionally been applied to determine cause in fact. [¶]
The Restatement formula uses the term substantial factor "to
denote the fact that the defendant's conduct has such an effect in producing
the harm as to lead reasonable men to regard it as a cause." ' [Citation.]" (Id.
at p. 1321.)
The only
limitation the Legislature placed on victim restitution is that the loss must
be an "economic loss incurred as the result of the defendant's criminal
conduct." (People v. Moore, supra, 177
Cal.App.4th at p. 1232.) In other words,
a defendant's criminal conduct must be a "but for" cause of the
losses. Appellant admitted that he
committed identity theft of both Rene and Armando Nava. In order to commit the crime of
obtain and use their personal data "to obtain, or attempt to obtain,
credit, goods, services, or medical information in the name of the other person
without the consent of that person."
(§ 530.5(a).) Having admitted
that he did just that appellant cannot now complain that transactions in which
he obtained credit and goods, whether or not charged as individual counts and
whether or not dismissed as part of the plea bargain, should go
uncompensated. Simply put, appellant's criminal conduct in taking the
personal data of Rene and Armando Nava and using it to obtain credit and goods
was a "but for" cause of the economic losses to the credit card companies and businesses for which
appellant is required to pay.
Finally, as to appellant's claim
that counsel was ineffective in failing to object to the restitution awards,
since the restitution awards were authorized by the facts of this case we
reject appellant's claim that he was denied the effective
assistance of counsel. (People v. Rodrigues (1994) 8 Cal.4th
1060, 1126 [a conviction will not be reversed based on a claim of ineffective
assistance of counsel unless the defendant establishes that (1) counsel's
representation fell below an objective standard of reasonableness; and
(2) there is a reasonable probability that, but for counsel's
unprofessional errors, a determination more favorable to defendant would have
resulted. If the defendant makes an
insufficient showing on either one of these components, the ineffective
assistance claim fails].)
Sufficiency of the
Evidence
Appellant
argues that no evidence supports the awards of victim restitution to Kohl's,
G.E. Money Bank Sony's Card and Bank of America. Appellant contends that the wholly
unsubstantiated assertions in the sentencing memorandum are insufficient to
support an award of victim restitution to Kohl's, G.E. Money Bank Sony's Card
and Bank of America. In essence,
appellant is not challenging the amount of the award. Rather, appellant is contending that there
was no evidence that it was his criminal conduct that caused the losses in the
first place.
title="">[9]
There is no
question that the only evidence that Kohl's, G.E. Money Bank Sony's Card and
Bank of America lost money was the statement in the probation officer's
sentencing memorandum to that effect.
"In
reviewing the sufficiency of the evidence [to support a restitution award], the
' "power of the appellate court begins and ends with a determination
as to whether there is any substantial evidence, contradicted or
uncontradicted," to support the trial court's findings.' [Citations.]
Further, the standard of proof at a restitution hearing is by a
preponderance of the evidence, not proof beyond a reasonable doubt. [Citation.]
'If the circumstances reasonably justify the [trial court's]
findings,' the judgment may not be overturned
when the circumstances might also reasonably support a contrary finding.
[Citation.] We do not reweigh or reinterpret
the evidence; rather, we determine whether there is sufficient evidence to
support the inference drawn by the trier of fact. [Citations.]" (People v. Baker (2005) 126
Cal.App.4th 463, 468–469.)
"At
the core of the victim restitution
statutory scheme is the mandate that a victim who suffers
economic loss is entitled to restitution
and that the restitution is to be 'based on the amount of
loss claimed by the victim.' Thus, a victim seeking
process by identifying the type of loss . . . he or she
has sustained and its monetary value."
(People v. Fulton (2003) 109 Cal.App.4th 876, 885-886.)
Over the
last decade or more there has been some disagreement among appellate courts as
what may be considered in determining if the victim has
made the required prima facie case of loss. The weight of authority sanctions the trial
court's reliance on the information in the probation
Cal.App.4th 726, 734 [when the probation report
includes a discussion of the victim's loss
and a recommendation on the amount of restitution, the
defendant must come forward with contrary information to challenge that amount];
People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406–1407 [absent a
challenge by defendant, an award of the amount specified in the
discretion when the report includes discussion of the
the amount of restitution, the defendant must come
forward with contrary information to challenge that amount]; In re S.S.
(1995) 37 Cal.App.4th 543, 545 [in determining the amount of restitution
the court can rely on itemization of losses in the
declaration was filed]; People v. Foster (1993) 14 Cal.App.4th 939, 947,
superseded on other grounds as stated in People v. Sexton (1995) 33
Cal.App.4th 64, 70–71 [when the probation
to the amount of restitution, the defendant must come
forward with contrary information to challenge that amount]; People v.
Hartley (1984) 163 Cal.App.3d 126, 130, fn. 3 [since a defendant will learn
of the amount of restitution recommended when he reviews
the probation report prior to
sentencing, the defendant bears the burden at the hearing of proving that
amount exceeds the replacement or repair cost]; People v. Gemelli (2008)
161 Cal.App.4th 1539, 1542-1545 [victim made
where probation officer's report
and handwritten statement from victim listing economic
costs of materials and labor for repair]; People v. Keichler (2005) 129
Cal.App.4th 1039, 1048 [the trial court is entitled to consider the
hearing; absent a challenge by the defendant, an award of the amount specified
in the probation report is not an
abuse of discretion]; see also People v. Hove (1999) 76 Cal.App.4th
1266, 1275.)
On the
other hand,
this one, have required fairly rigorous presentation of evidence
and do not find the bare probation report
sufficient. (People v. Harvest
(2000) 84 Cal.App.4th 641, 653 [probation officer's
it cannot take the place of evidence where unsupported by documentation or
testimony]; In re K.F. (2009) 173 Cal.App.4th 655, 665 [we reject any
suggestion that a burden of refutation may be imposed on the defendant merely
by asserting that a stated amount is sought as restitution]; People v. Vournazos
(1988) 198 Cal.App.3d 948, 958–959 [restitution based solely on recommendation
of probation officer based on his conversation with the victim insufficient to
establish a prima facie claim].)
Virtually
all of the appellate decisions permitting a probation report to be considered
in establishing the victim's prima facie case for the losses suffered involved
the victim. Some
involved a detailed breakdown of how the losses were
calculated (see, e.g., People v. Gemelli, supra, 161 Cal.App.4th at p.
1544), some involved a recommendation by the probation
officer of the losses (see e.g., People v. Pinedo,
supra, 60 Cal.App.4th at pp. 1406–1407; People v. Hove, supra, 76
Cal.App.4th at p. 1275), and some involved the presentation of additional
factual evidence beyond that contained in the
v. Collins, supra, 111 Cal.App.4th at p. 734).
Nevertheless,
the purpose of the restitution
statute is to assist those victimized by crime. This policy goal is sufficiently important to
be enshrined in the state Constitution, which states: "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." (Cal. Const., art. I, § 28, subd. (b).) Section 1202.4, subdivision (f) requires
"full restitution."
Moreover,
section 1202.4, subdivision (f) states that the amount of loss is to be
"based on the amount of loss claimed by the victim or victims or
any other showing to the court." (§
1202.4, subd. (f), italics added.) Use
of the word "claimed" by the Legislature would be an unusual way of
requiring the victim to prove losses, if proving the claim was intended. This wording indicates that something less
than proof is required to establish the victim's economic losses and shift the
burden to the defendant to challenge the amount of losses sought.
As this
court has explained before, " ' "[w]hen the probation
report includes information on the amount of the victim's loss and a
recommendation as to the amount of restitution, the defendant must come forward
with contrary information to challenge that amount." ' [Citations.]" (People v. Holmberg,
contained in the probation officer's sentencing memorandum and was sufficient
evidence of that loss. Since appellant
did not present evidence sufficient to rebut this prima facie showing, "an
award of the amount specified in the probation report is not an abuse of
discretion. [Citation.]" (People v. Keichler, supra, 129
Cal.App.4th at p. 1048.)
Having
determined that there was sufficient evidence of the losses sustained by
Kohl's, G.E. Money Bank Sony's Card and Bank of America, we reject appellant's claim that he was denied
the effective assistance of counsel. (People
v. Rodrigues, supra, 8 Cal.4th at p. 1126.)
Direct Victims
Appellant argues that the award
of victim restitution to six credit card companies was unauthorized because
they were not direct victims of the crimes of conviction. Instead, he asserts that they were at least
one degree removed from the direct victims, namely the two natural persons and
four merchants named in the information in 101687A.
Appellant
contends that insofar as credit card companies incur economic costs by assuming
losses cardholders or merchants would otherwise bear for unauthorized transactions,
they are comparable to insurers or other indemnifying agencies.
The term
"victim" in section 1202.4, subdivision (k)(2) is specifically
defined and encompasses " '[a]ny corporation, business trust, estate,
trust, partnership, association, joint venture, government, governmental
subdivision, agency, or instrumentality, or any other legal or commercial
entity when that entity is a direct victim of a crime.' " (People
v. Anderson (2010) 50
Cal.4th 19, 28.) Thus, section 1202.4,
subdivision (k) permits restitution to a business or governmental entity only
when it is a direct victim of crime.
(Ibid.)
Accordingly,
to be entitled to restitution, the credit card companies "must
have (1) suffered
an economic loss,
and (2) be
victim' under the
statute." (
1082 (Saint–Amans).)
In
(Birkett), our Supreme Court
concluded entitlement to restitution arises only in favor
of " 'direct' [crime] victim[s]'
. . . and insurers [do] not become such 'direct
under the terms of their policies."
(Id. at p. 229.)
In
construing the term "direct victim," our Supreme Court "has
defined 'direct' as:
' "straightforward, uninterrupted, [or] immediate" in
time, order or succession, or "proceeding [in logic] from antecedent to
consequent, from cause to effect, etc., uninterrupted," or generally
"[e]ffected or existing without intermediation or intervening agency;
immediate." [Citation.]' " (People v. Slattery (2008) 167
Cal.App.4th 1091, 1095–1096 (Slattery).)
The Slattery court rejected the People's argument that the term
"victim restitution" in section 1202.4, subdivision (f), must be
construed to include "all persons who suffer losses as a result of
criminal activity." (Cal. Const.,
art. I, § 28, subd. (b)). Because section 1202.4, subdivisions (f) and (k),
limited "victim restitution" to direct victims of crime, the
court held that a hospital which treated a victim of elder abuse could not
claim victim restitution for the unpaid costs of treatment, and must instead
recoup its debt by a civil action. (Slattery, supra, 167 Cal.App.4th
at p. 1097.)
held an account from which a defendant fraudulently withdrew funds was a direct
victim of defendant's commercial burglary because the bank "was the object
of the crime." (Saint–Amans,
supra, 131 Cal.App.4th at p. 1084.) This was so because "[defendant]
committed his offense
by entering the
bank's premises at
three different branches,"
then "deceiv[ed]
and used [its]
bank account system";
thus, the bank was the entity against which defendant committed the crime. (Saint–Amans, supra,
131 Cal.App.4th at pp. 1086–1087.)
Similarly,
1262, held that a bank that covered forged checks was a direct victim of the
forgery and hence entitled to restitution.
Just last
year our Supreme Court noted that "case law has ascribed a precise meaning
to the phrase 'direct victim,' as that phrase has appeared in several
restitution statutes. Thus, it is
established that a statute 'permitting restitution to entities that are
"direct" victims of crime [limits] restitution to "entities against
which the [defendant's] crimes had been committed"—that is, entities
that are the "immediate objects of the [defendant's] offenses." [Citation.]'
[Citations.]" (
Here, the
credit card companies were the object of appellant's crimes of identity theft,
because, as appellant concedes, they are the entities that in general suffer a
loss for unauthorized transactions. (
v. J.K. Publications, Inc. (C.D. Cal. 2000) 99 F.Supp.2d 1176, 1184, fn. 19 [when a card holder complains of
unauthorized charges, the card holder can receive a reimbursement by chargeback
or credit. If the issuing bank accepts
the complaint from a customer who disputes a charge on his or her account
statement, it will reverse or charge back the transaction through the credit or
debit card interchange. The chargeback
causes a debit to be placed on the merchant's account at its bank and a credit
on the customer's account at the issuing bank.
A fee against the merchant account is ordinarily assessed for each
chargeback. Alternatively, a credit can
be given to the card holder by the merchant directly (whereby the merchant
agrees to reimburse the card issuer), or it can be given by the card issuer
(where the issuing bank absorbs the cost of the unauthorized charge)].)
Appellant applied to the credit card
companies under the name of Rene Nava and Armando Nava in order to obtain
credit cards in their names. Having done
so he obtained goods and services for which he had no intention of paying. While Rene and Armando Nava were victims of
the identity theft counts in the sense that it was their personal information
that was obtained by appellant, appellant used their information to obtain
credit cards he had no right to obtain.
He was, in essence, defrauding the credit card companies.
We do not read the Supreme Court's
construction of the victim restitution statutes as requiring that a victim be
the "object" of the crime in the sense that the defendant's criminal
conduct was specifically directed to that individual or entity. In addition to describing the
"victim" as being one who is the object of a crime (Birkett,
supra, 21 Cal.4th at p. 233; People v. Crow (1993) 6 Cal.4th 952,
957), the court has also stated that victims entitled to restitution are those
who are "the real, actual, immediate, and direct victims of crime. . .
." (Birkett, supra, at p.
243.) In Birkett, the court
defined "actual" as " '[e]xisting in . . . fact; . . . real, . .
.' [citation]" (id. at p.
233, fn. 5); and "direct" as " 'straightforward, uninterrupted,
[or] immediate' in time, order or succession, or 'proceeding [in logic] from
antecedent to consequent, from cause to effect, etc., uninterrupted,' or
generally '[e]ffected or existing without intermediation or intervening agency;
immediate.' [Citation.]"
6.) In light of these definitions, the
credit card companies were unquestionably actual and direct victims of
appellant's criminal conduct. They were
undoubtedly "real" entities that suffered as a result of appellant's
actions; losses were a "straightforward, uninterrupted, [or]
immediate" consequence of appellant's criminal conduct.
Accordingly, we conclude that since
appellant admitted two counts of identity theft whereby he obtained credit
cards that he used to obtain goods and services, the credit card companies were
the direct victims of his crimes and therefore entitled to victim restitution.
That being said, we reject
appellant's claim that his counsel was ineffective in failing to object to the
award of restitution to the six credit card companies. (People v. Rodrigues, supra, 8
Cal.4th at p. 1126.)
Assignment of Civil Liability in Excess of
Jurisdiction
Appellant argues that the awards of
victim restitution for conduct for which he was not convicted nor admitted
amounted to an assignment of civil liability in excess of the sentencing
court's jurisdiction and violated his due
process rights. As we have explained
ante, the sentencing court did not
act in excess of its jurisdiction in awarding restitution to all the victims in
this case, because all the awards were compensation for economic losses that
were the result of the appellant's criminal conduct in stealing the Navas'
identities. (§ 1202.4, subd. (f).) As to his argument that his due process
rights were violated, this claim with regard to victim
1321–1322 [failure to object at trial to stun belt restraint forfeited
constitutional challenges]; People v. Catlin (2001) 26 Cal.4th 81
[failure to object at trial to evidence admitted at penalty phase forfeited
claim that admission violated due process].)
If not adequately preserved,
appellant counters that trial counsel was ineffective in failing to
object. Appellant argues there was no
conceivable tactical benefit flowing from this failure.
To successfully assert a claim of
ineffective assistance of counsel, a defendant must demonstrate that (1)
counsel's representation fell below an objective standard of reasonableness,
and (2) but for counsel's errors there is a reasonable probability that the
result of the proceeding would have been different. (Strickland v. Washington (1984) 466
U.S. 668, 688, 694 (Strickland); People
v. Ledesma (1987) 43 Cal.3d 171,
215–218.)
As Strickland advises, "a court need not determine whether
counsel's performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies." (Strickland,
supra,
466 U.S. at p. 697.)
We conclude that there was no
ineffective assistance of counsel here because for all the reasons outlined
that the result would have been more favorable to defendant had his counsel
objected.
Restitution Fund Fine, Parole Revocation Fine, and Victim Restitution
to Kohl's
In
sentencing appellant in 101687A, the court imposed a restitution fund fine in
the amount of $1000 (§ 1202.4, subd. (A)(b)(1)), and a parole revocation fine
in the same amount (§ 1202.45). In
addition, the court ordered that appellant pay $2042.44 in victim restitution
to Kohl's. However, both the clerk's
minute order from the sentencing hearing and the abstract of judgment reflect a
restitution fund fine and parole revocation fine of $3600. As to the award to Kohl's, the clerk's minute
order reflects that the amount is $2143.44.
of judgment and the minute order corrected to reflect the amounts as orally
imposed by the court. Respondent does
not object.
Where a
minute order or abstract of judgment differs from the court's
pronouncements, the minute order does not
control. Any discrepancy is deemed to be
the result of clerical error. (People
v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Walz (2008) 160
Cal.App.4th 1364, 1367, fn. 3; People v. Price (2004) 120 Cal.App.4th
224, 242.) "[T]he clerk's minutes
must accurately reflect what occurred at the hearing." (People v. Zachary (2007) 147
Cal.App.4th 380, 388.) "The clerk
cannot supplement the judgment the court actually pronounced by adding a
provision to the minute order and the abstract of judgment. [Citation.]" (Id. at pp. 387–388.) Errors in the abstract of judgment may be
corrected by this court on appeal. (People
v. Mitchell, supra, 26 Cal.4th at p. 185; People v. Garcia (2008)
162 Cal.App.4th 18, 24, fn. 1.)
Accordingly, we will order that the abstract of judgment be corrected to
reflect a restitution fund fine of $1000 and a parole revocation fine in the
same amount. (§ 1202.45 [parole revocation fine must be assessed in the same
amount as that imposed pursuant to subdivision (b) of section 1202.4].) Additionally, the clerk's minute order from
the sentencing hearing must be corrected to show the victim restitution award
to Kohl's as $2,042.44.
Disposition
The
judgment is affirmed. However, the clerk
of the court is directed to modify the abstract of judgment and the clerk's minute
order from the sentencing hearing held on July 8, 2011, to reflect a
restitution fund fine of $1000 and parole revocation fine in the same
amount. With respect to the restitution
award to Kohl's, the clerk of the court is directed to amend the minute order
from the sentencing hearing and to amend the abstract of judgment to
specifically reflect an award to Kohl's in the amount of $2,042.44. The clerk of the court is directed to forward
a copy of the amended abstract of judgment to the
______________________________
ELIA,
J.
WE CONCUR:
_____________________________
RUSHING, P. J.
_____________________________
PREMO, J.
name="_ftn1" title="">[1] A third case, MS287961 (hereafter
MS287961), was sentenced at the same time, but no victim restitution was
ordered.
name="_ftn2" title="">[2] All unspecified section references are
to the Penal Code.
