P. v. McDaniel

Filed 4/30/07 P. v. McDaniel CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Robert D. McDaniel guilty of burglary (Pen. Code, 459; undesignated statutory references are to the Penal Code), robbery ( 211), and murder ( 187)

and found true the special circumstances that the murder was committed while he was engaged in a burglary and robbery

( 190.2, subd. (a)(17)) and the allegation he was armed during the commission of the crimes ( 12022, subd. (a)). Defendant was sentenced to state prison for life without the possibility of parole for the murder with special circumstances, plus one year for the armed enhancement, and ordered to pay a $10,000 restitution fine ( 1202.4, subd. (b)) and $13,450 in victim restitution, $10,000 of which was for stolen property ( 1202.4, subd. (f)). Defendant appealed, and this court affirmed the judgment. (People v. McDaniel (Feb. 26, 2003, C037451) [nonpub. opn.].)

Thereafter, defendant filed a petition for writ of habeas corpus in the trial court raising various issues, including [c]onstructive denial, or ineffective assistance, of counsel at sentencing with respect to victim restitution in violation of the Sixth Amendment to the United States Constitution. The trial court granted the petition as to that claim and ordered that a hearing in the underlying criminal case be set for further proceedings on the matter of victim restitution. Following a hearing on March 3, 2006, the trial court ordered defendant pay $8,450 in victim restitution as follows: $3,450 for cremation/funeral expenses and $5,000 for missing items.

Defendant appeals, contending (1) the trial court abused its discretion in ordering him to pay $5,000 for missing items and (2) the restitution order must be amended to show that it is in lieu of . . . the restitution fine. (Capitalization omitted.) We agree the $8,450 in victim restitution is in lieu of the $10,000 restitution fine. Accordingly, we shall modify the judgment to reduce the restitution fine to $1,550 and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

A supplemental probation report was prepared in anticipation of the March 3, 2006, restitution hearing. The report recommended defendant pay the victims sister, Darlene C., $17,000 for items taken during the burglary/robbery. The recommendation was based solely on an inventory prepared by Darlene C., a copy of which was attached to the report. The inventory included the following items:2 large binders - 50 golden years - Mint coins and stamps for years 1939 through 1989, which she estimated was worth at least $5,000; 2 large binders [the victim called] coin book library of all coins made in the U.S.A. with information: when minted & other coin info, which she estimated was worth at least $5,000;the contents of a suitcase safe, which she estimated was worth over $5,000; and the victims jewelry, which she estimated was worth $2,000. Darlene C. did not testify at the hearing.

Defendant objected to the amounts contained in the supplemental probation report, arguing (1) the suitcase safe was not taken during the burglary/robbery and (2) the victims coin collection was limited to two binders, neither of which was taken during the burglary/robbery. In support of his assertion, he introduced photographs taken at the crime scene depicting, among other things, a smaller Sentry fire safe thats portable and two large binders. The partially visible label on one of the binders indicated it contained stamps. Defendant also referred to Darlene C.s trial testimony, asserting that she only testified to the existence of two large binders, which she said contained both stamps and coins.^[2] As to Darlene C.s valuation of the two large binders, he argued: [W]e dont know where it comes from at all . . . .

The trial court found: It does appear . . . that the two safes which were mentioned are present. [] As far as the binders are concerned, two binders are certainly in the home. The Court is not convinced that it can decide with any certainty that these are the only two binders that were present in the home at the time. It would not be unreasonable to assume that they were not the only two binders in view of the collections visible in these photos, various types of collectibles.

[] . . . [] Again, though, its difficult to put a value because the Court does not know the denomination of the coins and the value of them other than what would be their face value. I think the figure does need to be adjusted. [] . . . [] As far as the missing items are concerned, I think the $10,000 was too high. I think that in view of the fact that the safes are present, the content of those being valued at about $5,000, Im prepared to remove $5,000 from the restitution order. Accordingly, the trial court ordered defendant pay $5,000 for missing items.

DISCUSSION

I

Defendant contends the trial court abused its discretion in ordering him to pay $5,000 for missing items.^[3] We disagree.

In this case, restitution is governed by former section 1202.4. At the time defendant committed the underlying offenses (April, 1995), that section provided in pertinent part: (f) In every case in which a victim has suffered economic loss as a result of the defendants conduct, and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine pursuant to subdivision (b), the court shall require that the defendant make restitution to the victim or victims. . . . [] (g) Restitution ordered pursuant to subdivision (f) shall be imposed in the amount of the losses, as determined. The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record. Restitution shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim or victims, for every determined economic loss incurred as the result of the defendants criminal conduct, including all of the following: [] (1) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible. (Former 1202.4; Stats. 1995, ch. 313, 5, pp. 1755-1758.)

[T]he trial court is entitled to consider the probation report when determining the amount of restitution. A property owners statements in the probation report about the value of her property should be accepted as prima facie evidence of value for purposes of restitution. (Cf. Evid. Code, 810 et seq. [providing special rules of evidence applicable to any action in which the value of property is to be ascertained].) Due process does not require a judge to draw sentencing information through the narrow net of courtroom evidence rules . . . . Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes. [Citation.] [Citation.] (People v. Foster (1993) 14 Cal.App.4th 939, 946-947 (superseded by statute on other grounds, see People v. Sexton (1995) 33 Cal.App.4th 64, 70).) When the probation report includes information on the amount of the victims loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount. (Foster, supra, at p. 947.)

Restitution orders are reviewed for abuse of discretion. (People. v. Mearns (2002) 97 Cal.App.4th 493, 498.) The court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious. (Ibid.) When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found. (Id. at p. 499.)

As a preliminary matter, the People assert defendant forfeited his challenge to the restitution award by failing to object to the sufficiency of the evidence when the restitution award was made. The People are mistaken. At the hearing, defendant challenged both the items listed in the probation report as well as their estimated values. No further action was required to preserve the issue on appeal.

Turning to the merits, the trial court determined the suitcase safe and one set of the binders listed in Darlene C.s inventory were not taken and ordered defendant to pay $5,000 for the second set of binders listed in the inventory. Defendant claims the trial courts finding that the binders pictured in the photographs were not the only two binders was arbitrary and unsupported. In support of his assertion, he represents that [w]hen asked at trial, the testimonies of the witnesses were that there were two binders, and sure enough the photographs showed two binders were present.

In making this claim, defendant simply parrots the argument and evidence cited by his trial counsel at the March 3, 2006, restitution hearing. There, counsel stated: [I]n going through the transcript of testimony of Denise [sic] C.[] that I had referenced earlier, particularly at pages 240, 241 and 245 of the official reporters transcript, she references in there only two binders that her brother had showed her. She talks about two huge binders. And in that regard there appears to be two very large binders. [] And she indicates in that testimony that they had both coins and stamps in those binders. . . . [] It would appear that those pictures have the two large binders in them at the crime scene. Theres no other reference to any other large binders that Ive been able to find in the record.

As previously indicated, pages 240 to 241 and 245 of the reporters transcript do not contain Darlene C.s trial testimony, and the testimony set forth on those pages is irrelevant to the issues now before us. (See fn. 2, ante.) Darlene C.s testimony is contained at pages 167 through 180 of the reporters transcript. Having reviewed those pages, we note that trial counsels summary of Darlene C.s trial testimony is inaccurate. In particular, she indicated the victim had three binders of coins, and one binder of stamps. When asked how the victim maintained the coins in the house, she responded: He had one set of two very large binders that were -- they said the fifty golden years, and they were all the coins from 1939 to 1989. And then he had another large binder that he called a library and it contained a library of every coin that has been made here in the United States. (Italics added.) When asked how many binders of stamps the victim had, she responded: Yeah, there was a binder of stamps that was there. Accordingly, the trial courts finding that the two binders in the photos, one of which indicated it contained stamps, were not the only two binders was neither arbitrary nor unsupported.

[A]ssuming arguendo [] that there was an identifiable loss, defendant contends that the valuation of that loss was not established. With respect to the value of the missing binders, the probation report included information on the amount of the victims loss. In relevant part, the report indicated that two sets of binders containing coins from the victims collection were missing and that each set was worth at least $5,000. Based on that information, the report recommended that defendant be ordered to pay $5,000 for each set of binders. Defendant therefore was required to come forward with contrary information to challenge that amount. (People v. Foster, supra, 14 Cal.App.4th at p. 947.) He failed to do so, offering no information as to the value of either collection. Accordingly, the trial court did not abuse its discretion in ordering defendant to pay $5,000 for one set of binders.

II

In addition to victim restitution, the trial court imposed a $10,000 restitution fine pursuant to section 1202.4, subdivision (b). Defendant argues that at the time of his offenses, victim restitution could only be ordered in lieu of the general restitution fine. The Attorney General concedes the restitution order should be amended to show an offset of the victim restitution against the maximum $10,000 restitution fine. (Capitalization omitted.) We agree.

The underlying offenses occurred in April of 1995. Up until August of 1995, section 1202.4, subdivision (f), provided for victim restitution in lieu of imposing all or a portion of the restitution fine pursuant to subdivision (b). (Former  1202.4; Stats. 1995, ch. 313, 5, pp. 1755-1758.) [T]he in lieu of language . . . requires that if restitution to the victim is to be paid, the maximum restitution fine that can be imposed is not $10,000, but $10,000 less the amount of restitution to the victim. A credit toward the maximum restitution fine allowable must be given for that amount of direct restitution to be paid to the victim. (People v. Cotter (1992) 6 Cal.App.4th 1671, 1677.)

Because the victim restitution totaled $8,450, the offset or credit for that amount reduces the maximum allowable restitution fine to $1,550.

DISPOSITION

The judgment is modified to reduce the restitution fine to $1,550. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

SIMS , Acting P.J.

We concur:

NICHOLSON , J.

ROBIE , J.

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Analysis and review provided by San Diego County Property line attorney.

^[1] The facts of defendants crimes are not relevant to the issues on appeal.

^[2] Defendant requested we take judicial notice as to pages 79-81, 222, 230, 231, 240-241 and 245 in case No. C037451 and that defendants crime occurred on April 24, 1995, as reflected in case No. C037451. In doing so, he did not specify whether the pages were contained in the clerks or reporters transcript. On August 23, 2006, we granted his request for judicial notice as to pages 79-81, 222, 230, 231, 240-241 and 245 of the clerks transcript . . . and that his crime occurred on April 24, 1995 in case No. C037451. After reviewing defendants opening brief and the record in this case, it is apparent defendant was referring to the reporters transcript. For example, in his opening brief, defendant indicates pages 240 through 241 and 245 contain Darlene C.s trial testimony. After reviewing the reporters transcript, however, we note that pages 240 through 241 and 245 do not contain Darlene C.s trial testimony, and the testimony set forth on those pages, as well as pages 79 through 81, 222, and 230 through 231, is irrelevant to the issues now before us. Darlene C.s testimony is contained at pages 167 through 180. Upon our own motion, we shall incorporate by reference pages 167 through 180 (Darlene C.s testimony) as well as page 917 (imposition of the statutory restitution fine) of the reporters transcript in case No. C037451 in the record of this appeal. (Cal. Rules of Court, rule 8.147(b)(1).)

^[3] The trial court also ordered defendant to pay $3,450 for cremation/funeral expenses. Defendant does not challenge that portion of the courts order on appeal.