P. v. Robinson

Filed 10/30/07 P. v. Robinson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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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Defendant Jason Learoy Robinson entered a plea of no contest to a charge that he unlawfully drove a 2001 Dodge truck with the intent to deprive the owner of lawful possession. (Veh. Code,  10851, subd. (a).)

Following a contested hearing on the issue of victim restitution, defendant was ordered to pay the trucks owner $29,000 for the truck. He contends on appeal that the trial court used an inappropriate methodology to calculate the value of the truck. We disagree and shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The victim, a self-employed handyman, testified he paid $40,500 in 2001 for a new Dodge Ram 2500 pickup truck. To outfit the truck with a secure camper shell, secure tool boxes, and a lumber rack with reinforcements cost him an additional $3,495.

When it was stolen, the truck contained a 30-year collection of hand tools used by the victim in his business; an inventory of the tools was introduced at the restitution hearing. Only three items on the two-page, single-spaced list (a pry bar, a red-handled screwdriver, and a Sears Saws-All) were recovered after the theft. Also in the truck when it was stolen were two weapons, clothing, and some camping gear; those items were never recovered, but were partially reimbursed by the victims insurance. As a result of the theft, the victim testified he lost five days worth of income in the sum of $2,500.

Forty-five days after the truck had been stolen, the victim and his insurance company agreed to settle for the depreciated value of $29,000 by using the Blue Book or the pay-off value.

The truck was recovered 12 days later, but it was never returned to the victim and there is no evidence in the record as to its condition at the time of its recovery.

At the hearing on the issue of victim restitution, defense counsel urged the court to order defendant to pay only the depreciated value of the truck and its contents. The prosecutor agreed that restitution for the trucks depreciated value might make some sense in that like property would be depreciated value property, but urged the court to use replacement value in calculating restitution for the trucks contents.

The court indicated it was persuaded by defense counsels reasoning on the issue of the trucks value and, after taking the matter under submission, ordered defendant to pay the victim $29,000 for the loss of his truck‑‑the depreciated value.^[1]

DISCUSSION

I. The Court Did Not Abuse Its Discretion in Calculating the
Restitution Amount for Victims Truck

Penal Code section 1202.4, subdivision (f)^[2]provides in relevant part: [I]n every case in which a victim has suffered economic loss as a result of the defendants conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.

The defendant has a right to a hearing to dispute the amount of restitution, and the court may modify the amount, on its own motion or on the motion of the district attorney, the victim . . . or the defendant. ( 1202.4, subd. (f)(1).) Restitution to the victim is mandatory, although the court retains discretion as to the amount. (People v. Rowland (1997) 51 Cal.App.4th 1745, 17511753 [court may modify sentence based upon guilty plea to include victim restitution where none previously awarded because sentence without any victim restitution is invalid, and the defendant failed to show a reasonable probability that he would not have pleaded guilty if advised of victim restitution].)

A trial courts determination of the amount of restitution is reversible only if the defendant demonstrates a clear abuse of discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992 (Thygesen).) No abuse of discretion is shown simply because the order does not reflect the amount of damages recoverable in a civil action. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) In determining the amount of restitution, all that is required is that the trial court 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.; People v. Mearns (2002) 97 Cal.App.4th 493, 498; Thygesen, supra, at p. 992.) The order must be affirmed if there is a factual and rational basis for the amount. (Mearns, supra, p. 499.)

Defendant now contends on appeal that the courts award to the victim of $29,000 for the depreciated value of his truck has no basis in fact or law because the amount is far too high.

Before rejecting his contention on the merits, we first note that defendant has forfeited his right to assert error in the award of direct victim restitution by failing to timely object at the hearing. Indeed, defendant argued at the hearing that the proper measure of restitution for the victim of vehicle theft is the depreciated value of the vehicle‑‑a measure the trial court adopted. When the trial court stated it would order defendant to pay the victim $29,000 for the loss of his truck, defendant did not object.

In addition, his argument lacks merit. We are aided by the discussion in Thygesen, supra, 69 Cal.App.4th 988. In Thygesen, the defendant illegally took a used cement mixer from an equipment rental business, but the court awarded the victim the value of a new cement mixer. (Id. at p. 995.) The Court of Appeal declared this was error. In describing the type of evidence necessary to support an order for the replacement cost of like property, the Court of Appeal reasoned, It would seem to have been a simple thing for someone connected with [the victim] to testify as to the age of the [cement] mixer, its original price, and what it would cost to replace it with a [cement] mixer of like type and age. As to a victim, the purpose of the restitution statute is to make that victim whole, not to give a windfall. [The victim] is not entitled to replace a used [cement] mixer with a brand new one at [the defendants] expense, absent some extraordinary facts. If [the victim] were a car rental agency that lost a 1995 Ford Taurus, it would be entitled to the replacement value of a similar 1995 Ford Taurus, not a [new] model. (Ibid.)

We agree with the approach expressed in this dictum from Thygesen. Defense counsel also embraced Thygesen, citing it at the hearing for the proposition that vehicle theft victims are entitled to restitution of like property. Meaning the depreciated value. He urged the court to follow the Thygesen courts dicta that a victim of car theft could be made whole by restitution in the amount of the depreciated value of the car.

And thats just what the trial court did: It ordered defendant to pay the victim the depreciated value of his stolen truck. The victim testified his insurance company considered the depreciated value of his five-year-old truck and its modifications‑‑described as either the Blue Book or the pay-off value‑‑to be $29,000. The courts use of the insurance companys calculation of the depreciated value of the truck was not an irrational method of determining the amount of restitution reasonably calculated to make the victim whole. There was no abuse of discretion.

Defendant now insists to the contrary, that the court could make no determination of the trucks value without first making findings of the trucks value before and after the theft, citing People v. Yanez (1995) 38 Cal.App.4th 1622 (Yanez). His reliance on Yanez is misplaced. In Yanez, the victims car was stolen and damaged by the defendant; thereafter, it was recovered and returned to the victim. The trial court ordered the defendant to pay restitution to cover repairs by the victim in an amount that exceeded the high Blue Book price of the car. (Id. at p. 1625.) The Court of Appeal held the trial court erred in awarding restitution for costs of repair that exceeded the value of the vehicle prior to the theft. (Id. at pp. 1625-1627.) In so doing, it opined that restitution should be limited to the lesser of (1) the difference between the market value of the property before the commission of the offense and the market value afterwards; or (2) the reasonable cost of repairing the damaged property to the condition it was in prior to being damaged. (Id. at p. 1627.)

Here, unlike the situation in Yanez, the stolen truck was never returned to the victim for repairs, and he made no claim for repairs. Requiring the trial court to tether its analysis to Yanez under the facts of this case would have required the court to look not at the victims actual loss (cf. Yanez, supra, 38 Cal.App.4th at p. 1627), but at his hypothetical loss. Moreover, what the trial court did here is not inconsistent with the result in Yanez: It awarded the victim the depreciated Blue Book or the pay-off value, an award the court in Yanez implicitly suggests is an acceptable measure of the maximum value of the vehicle prior to being stolen (38 Cal.App.4th at p. 1625). The court in Yanez criticized a restitution award that gave the victim more than the depreciated market value. That is not what happened here.

Defendant has failed to show an abuse of discretion.

II. The Judgment Must Be Amended to Eliminate the
Reference to a Section 1202.44 Fine

At sentencing, the trial court placed defendant on probation.

On appeal, defendant asks us to strike from page 3 of the clerks June 22, 2006 minute order and order of probation, the $200 probation revocation restitution fine because the trial court expressly declined to impose it.

The People concede the error and we agree. At sentencing, the trial court imposed a $200 restitution fine under section 1202.4, but declined to impose an additional $200 probation fine which will be forgiven. Section 1202.44 authorizes a stayed probation revocation restitution fine, but provides that the trial court may waive the fine for compelling and extraordinary reasons stated on the record. Here, the court noted that defendant was not employed.

A court clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order. (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388.) We emphasize here what should not need repeating: that the clerks minutes must accurately reflect what occurred at the hearing. (Id. at p. 388.)

DISPOSITION

The courts victim restitution order is affirmed. The probation revocation restitution fine imposed pursuant to section 1202.44 is stricken. As modified, the courts order of probation is also affirmed.

BUTZ , J.

We concur:

SIMS , Acting P. J.

HULL, J.

^[1] In contrast, the court ruled that replacement value was a more appropriate measure for the trucks contents, and ordered defendant to pay the victim a total of $19,109.55 for the trucks contents, and $2,500 in lost income, for a total restitution award of $50,609.55.

^[2] Undesignated statutory references are to the Penal Code.