Filed 7/10/17 P. v. Diaz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JUAN DIAZ,

Defendant and Appellant.
H043235
(Santa Clara County
Super. Ct. No. C1507847)
I. INTRODUCTION
After a jury convicted defendant Juan Diaz of unauthorized use of a vehicle (Veh. Code, § 10851, subd. (a)), the trial court placed defendant on probation for three years and ordered him to pay victim restitution of $4,925.82.
On appeal, defendant raises three instructional errors and contends his trial counsel was ineffective for failing to object to the trial court’s calculation of the restitution order. For reasons that we shall explain, we find no merit to defendant’s claims of instructional error, but we will reverse the order of probation and remand the matter to the trial court for a recalculation of victim restitution.
II. BACKGROUND
Defendant was convicted of unlawfully driving a U-Haul truck he had rented but failed to return. The defense theory was that defendant did not have the requisite intent to deprive the owner of the truck, because he intended to return the truck but could not afford to.
A. The U-Haul Truck Rental
On January 26, 2015, defendant rented a U-Haul truck from Self Store-It, a facility located in Manteca. He dealt with Self Store-It employee Candi Kettgen, who knew defendant because he rented a storage unit at the facility and had previously rented U-Haul trucks. Defendant had never rented a U-Haul truck for more than a few days, and he had always returned the trucks.
Defendant indicated he wanted the U-Haul truck so he could bring some of his belongings to the storage unit. Kettgen provided defendant with a rental contract, and defendant paid a $100 cash deposit. The rental contract was for one 24-hour period. Defendant provided a residential address and phone number; both were written on the contract. The contract specified a daily rental rate of $29.95 per day, an insurance fee of $14 per day, and a mileage rate of 79 cents per mile. According to Kettgen, 79 cents per mile was the weekday rate, and Self Store-It charged a higher mileage rate of 99 cents per mile on Fridays and Saturdays.
Defendant did not return the U-Haul truck the following day, January 27, 2015. Kettgen called defendant, who told her “that he needed another day.” Kettgen told defendant that she needed to collect another deposit if he was going to keep the truck another day. Defendant went to Self-Store It, paid another $100 deposit, and was provided with another rental contract, which indicated a rental due date of January 29, 2015 and a mileage rate of 79 cents per mile.
By January 30, 2015, defendant had not returned the U-Haul truck. Kettgen made numerous attempts to contact defendant by phone but was unable to reach him. On February 4, 2015, defendant told Kettgen that he was going to bring more deposit money that afternoon, but he failed to do so.
The next day, February 5, 2015, defendant again told Kettgen he was going to bring more deposit money, and he said he would drop off the U-Haul truck that night. Defendant went to Self Store-It, where employee Patsy Baron took a $100 payment from defendant and provided him with a copy of a new contract, which showed a rental due date of January 31, 2015 and a mileage rate of 79 cents per mile. Defendant said he would return the U-Haul truck the next day, February 6, 2015, but he did not do so.
Baron took another payment from defendant on February 13, 2015. The rental contract she provided to defendant that day showed a rental due date of February 13, 2015 and a mileage rate of 79 cents per mile. Baron subsequently made a number of calls to defendant in an attempt to get him to return the U-Haul truck. When she was able to reach defendant, he would tell her that he was going to return the truck the next day. At some point, Baron’s calls began going to defendant’s voice mail, which was full.
Kettgen communicated with defendant on February 22, 2015. Defendant assured Kettgen that the truck was “fine.” Defendant asserted that he had been “super busy” but that he planned to bring the truck back the next day. Kettgen told defendant, “[I]f not, we need more money.” Defendant did not bring the truck back the following day, nor did he provide any additional money. Defendant also did not attempt to contact Kettgen or any other employees at Self Store-It.
Also on February 22, 2015, U-Haul area field manager Richard Cardenas went to the address defendant had given, but Cardenas did not see the truck. However, a few days later, on February 25, 2015, Cardenas spotted the truck in a grocery store parking lot. Cardenas spoke with defendant, telling him that the truck was overdue and needed to be returned. Defendant stated that he was using the truck to store his business items and that he still needed it because a business transaction had fallen through. Cardenas said that defendant needed to return the truck or go back to Self Store-It and pay more money to extend the contract. Defendant indicated he was waiting for some money to come in. Cardenas told defendant that “technically I could take the truck with his items inside of it,” but defendant asked him not to do so. Cardenas told defendant the truck would be reported as stolen if defendant did not return it. Defendant asserted that he would return the truck “[w]ithin the next day or so.”
About three weeks later, on March 16, 2015, when defendant still had not returned the truck, Cardenas called defendant. Defendant told Cardenas “the same story,” claiming he could not return the truck at that time but that he would try to return it the next day. Cardenas informed defendant that the truck was going to be reported as stolen and that defendant could be arrested if he did not return it. Defendant did not return the truck.
On March 25, 2015, Kettgen reported the U-Haul truck as stolen. Manteca Police Officer Jason Massey attempted to contact defendant via telephone and by visiting an address given to him by Kettgen, but he was unsuccessful.
B. Defendant’s Arrest
At about 10:20 p.m. on March 31, 2015, San Jose Police Officer Brendan Monlux was on patrol in an area near a Walmart store. In a parking lot, Officer Monlux saw a large U-Haul truck near a row of bushes. He ran the license plate and discovered the truck had been reported stolen. When defendant entered the truck, Officer Monlux arrested him. Defendant asked Officer Monlux why he was being arrested. Officer Monlux explained that defendant “had not returned the vehicle.” Defendant stated, “I know I was only supposed to have it for a day, and it’s been five weeks.”
When defendant rented the truck, its mileage was 3,711. When the truck was recovered, its mileage was 6,289.
C. Defendant’s Testimony
Defendant testified that he was self-employed as a liquor license broker and liquidator. In January 2015, he was living at a warehouse, at the address he gave to Self Store-It. However, he had to move out of the warehouse. He planned to move to San Jose, but he needed money, which he was expecting to be paid.
At the time he first rented the U-Haul truck, defendant did not know how long it would take for him to move. He therefore did not provide any “specifics” on when he would return the truck. He did not recall signing a contract or being told any terms of the rental. He understood that he would pay for the truck “in full” when he returned it.
Defendant went back to Self Store-It to deposit more money when Kettgen called him a few days after the initial rental. He did not have any discussion about a return date at that time, although he did receive a written rental agreement. He made another deposit about three days later and, at some point later, a fourth deposit. He did not remember ever saying that he would return the truck the next day.
After defendant finished moving everything out of the warehouse, he still had not been paid the money he was expecting. He was unable to make any further deposits for the U-Haul rental. He had no place to stay and lived inside the truck.
Defendant recalled speaking with Cardenas and explaining his financial situation. Cardenas “said he wanted to have the truck back” but did not indicate that the truck had to be returned immediately. Defendant still understood that he could keep the truck until he was able to pay for it “in full.”
Defendant denied telling Officer Monlux that he knew he was only supposed to have the truck for a few days.
D. Charge, Verdict, and Sentencing
In a first amended information, defendant was charged with theft or unauthorized use of a vehicle. (Veh. Code, § 10851, subd. (a).) After a jury trial, defendant was found guilty of “unauthorized use of a vehicle.” (Capitalization omitted.) At the sentencing hearing, the trial court placed defendant on probation for three years and ordered him to pay victim restitution of $4,925.82.
III. DISCUSSION
A. CALCRIM No. 1820
Defendant contends the trial court erred by giving a modified version of CALCRIM No. 1820, the instruction defining the crime of unlawfully taking or driving a vehicle. He raises three challenges to the instruction. First, defendant contends the trial court should not have included language about embezzlement without defining the term “embezzlement.” Second, defendant contends the instruction created a mandatory presumption that a person has embezzled a vehicle if he or she fails to return a rental vehicle within five days after the rental agreement has expired. Third, defendant contends the instruction confusingly told the jury that defendant did not need the intent to steal the vehicle. Defendant contends the errors violated his jury trial and due process rights under the federal constitution.
1. Challenged Instruction
As read to the jury, the modified version of CALCRIM No. 1820 provided: “The defendant is charged in Count 1 with unlawfully taking or driving a vehicle, in violation of Vehicle Code section 10851. To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant took or drove someone else’s vehicle without the owner’s consent; [¶] And two. When the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time. [¶] Even if you conclude that the owner had allowed the defendant or someone else to take or drive the vehicle before, you may not conclude that the owner consented to the driving or taking on or about and between March 26th, 2015, and March 31st, 2015, based on that previous consent alone. [¶] If you find that the defendant leased or rented a vehicle and willfully and intentionally failed to return the vehicle to its owner within five days after the lease or rental agreement had expired, you may, but are not required to, infer that the defendant embezzled the vehicle. Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted. [¶] A taking requires that the defendant remove the vehicle from the owner’s possession. A taking requires that the vehicle be moved for any distance, no matter how small. [¶] The People are not required to prove that the defendant who’s driving a vehicle without the owner’s consent initially took the vehicle without the owner’s consent. A person may be guilty of this crime based on driving without the owner’s consent where a person obtains lawful possession and thereafter forms the specific intent to deprive the owner of possession. [¶] A person may be convicted of this crime whether or not he had the intent to steal the vehicle. Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
2. Proceedings Below
During the jury instruction conference, defendant objected to CALCRIM No. 1820 on two separate grounds. First, defendant argued that the paragraph concerning embezzlement “doesn’t apply to Vehicle Code section 10851.” Defendant argued that “the term ‘embezzlement’ does not appear anywhere in Vehicle Code section 10851,” and that the instruction would confuse the jury.
Second, defendant objected to the paragraph regarding situations where the vehicle owner originally gave consent. Defendant requested that the paragraph be left out of the instruction.
The trial court overruled the defense objections. As to the paragraph concerning embezzlement, the trial court noted that the jury could request clarification. As to the paragraph concerning prior consent, the trial court noted that it was “an accurate reflection of the law.”
3. Failure to Define Embezzlement
Defendant first contends the trial court should not have included language about embezzlement in CALCRIM No. 1820 without defining the term “embezzlement.” He points out that according to People v. Wooten (1996) 44 Cal.App.4th 1834 (Wooten), there are three elements of embezzlement: “ ‘1. A relation of trust and confidence existed between two persons, [¶] 2. Pursuant to such relationship one of those persons accepted property entrusted to [him] by the other person, and [¶] 3. With the specific intent to deprive the person of [his] property, the person appropriated or converted it to [his] own use or purpose.’ ” (Id. at p. 1845.) He also points out that the crime of embezzlement has its own jury instruction, CALCRIM No. 1806.
As the Attorney General points out, the modified version of CALCRIM No. 1820 effectively defined the term embezzlement. The instruction specified that embezzlement occurred only if defendant had a “lease or rental agreement” with the property owner—i.e., that there was a relation of trust and confidence. The instruction further specified that “[e]mbezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted,” thereby informing the jury that embezzlement required a finding that defendant had been entrusted with the property. The instruction also told the jury that embezzlement required a finding that defendant “fraudulent[ly] appropriat[ed]” the property. Finally, CALCRIM No. 1820 told the jury that it could not convict defendant of violating Vehicle Code section 10851 without finding that defendant “intended to deprive the owner of possession or ownership of the vehicle for any period of time.” As the elements of embezzlement were included in the modified version of CALCRIM No. 1820, no further instruction on those elements was necessary.
4. Creation of Mandatory Presumption
Defendant next contends the modified version of CALCRIM No. 1820 created an improper mandatory presumption similar to the one found unconstitutional in Carella v. California (1989) 491 U.S. 263 (Carella). In that case, the defendant was convicted of grand theft after he failed to return a rental car. (Id. at p. 264.) The trial court instructed the jury that a person “ ‘shall be presumed to have embezzled’ a vehicle if it is not returned within 5 days of the expiration of the rental agreement; and second, that ‘intent to commit theft by fraud is presumed’ from failure to return rented property within 20 days of demand.” (Id. at p. 265.) These instructions were unconstitutional because they contained “mandatory directions” that “directly foreclosed independent jury consideration of whether the facts proved established certain elements of the offenses with which [the defendant] was charged” and they “relieved the State of its burden of proof. . . .” (Id. at p. 266.)
In this case, the instruction did not contain the same language as Carella. The instruction permitted the jury to presume defendant embezzled the vehicle if he “leased or rented a vehicle and willfully and intentionally failed to return the vehicle to its owner within five days after the lease or rental agreement had expired.” Unlike in Carella, the instruction specified that the jurors “may, but are not required to, infer that the defendant embezzled the vehicle” if they made such a finding.
Defendant acknowledges that the version of CALCRIM No. 1820 given here “used permissive language” rather than “mandatory language.” However, he contends a mandatory presumption was created through the following language of the instruction: “Even if you conclude that the owner had allowed the defendant or someone else to take or drive the vehicle before, you may not conclude that the owner consented to the driving or taking on or about and between March 26th, 2015, and March 31st, 2015, based on that previous consent alone.” Defendant asserts that the foregoing language resulted in a mandatory presumption that he had the requisite intent to temporarily or permanently deprive the owner of possession of the vehicle.
The challenged language—concerning the vehicle owner’s consent—did not create a mandatory presumption regarding defendant’s intent. The language is based on Vehicle Code section 10851, subdivision (c), which provides: “In any prosecution for a violation of subdivision (a) or (b), the consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of the owner’s consent on a previous occasion to the taking or driving of the vehicle by the same or a different person.” The instruction and statute correctly explain that a person may be found guilty of violating Vehicle Code section 10851 where the defendant’s taking or driving of the vehicle exceeds the “time of the consent.” (See People v. Hutchings (1966) 242 Cal.App.2d 294, 295.)
5. Intent to Steal
Defendant’s third challenge to CALCRIM No. 1820 is to the portion of the instruction that stated, “A person may be convicted of this crime whether or not he had the intent to steal the vehicle.”
Defendant notes that the jury was instructed on an embezzlement theory, and he asserts that the instruction was confusing because “[e]mbezzlement requires the intent to permanently deprive the victim.” Neither case defendant cites in support of this proposition actually so holds. In fact, the first case holds just the opposite—that “[a]n intent to deprive the rightful owner of possession even temporarily is sufficient” for the crime of embezzlement. (In re Basinger (1988) 45 Cal.3d 1348, 1363, italics added.) The second case, Wooten, supra, 44 Cal.App.4th 1834, did not address the issue of whether embezzlement requires the intent to permanently deprive the victim of his or her property. As the Attorney General points out, a more recent Court of Appeal case noted some conflict in cases on this question and held that “the necessary mental state [for embezzlement] may be found to exist whenever a person, for any length of time, uses property entrusted to him or her in a way that significantly interferes with the owner’s enjoyment or use of the property.” (People v. Casas (2010) 184 Cal.App.4th 1242, 1247.) Moreover, Vehicle Code section 10851, subdivision (a) specifies that the required intent is “either to permanently or temporarily deprive the owner” of the subject property. Thus, the instruction was neither confusing nor incorrect.
B. CALCRIM No. 376
Defendant contends the “slight corroboration” requirement of CALCRIM No. 376, the instruction on possession of recently stolen property, reduced the prosecutor’s burden of proof, thereby violating his federal constitutional rights.
1. Proceedings Below
During the jury instructions conference, defendant objected to CALCRIM No. 376 as “circular and confusing” under the “circumstances of this case.” He argued that the question of “whether or not the property had in fact been recently stolen” was “the disputed issue that is the question before the jury.” He further argued that the jury might believe that “because the property was reported stolen, that . . . has some significance.”
The prosecutor argued that CALCRIM No. 376 was appropriate because “intent is at issue in this case.” The prosecutor pointed out that the instruction did not contain any reference to the fact that “the property was reported stolen,” and she argued that, therefore, the instruction did not “create any sort of mandatory inference or presumption.”
The trial court overruled the defense objection. Pursuant to CALCRIM No. 376, the jury was instructed: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of unlawful taking or driving of a vehicle as charged in Count 1 based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed the offense of unlawful taking or driving of a vehicle. [¶] The supporting evidence need only be slight and need not be . . . enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of the charged crime. [¶] You may also consider the time, place, and manner of possession that tend to show guilt and the defendant’s conduct or statements tending to show guilt. Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
2. Analysis
“We review de novo whether a jury instruction correctly states the law. [Citation.] Our task is to determine whether the trial court ‘ “fully and fairly instructed on the applicable law.” [Citation.]’ ” (People v. Lopez (2011) 198 Cal.App.4th 698, 708 (Lopez).)
Defendant asserts that “[b]y using the term ‘slight,’ the instruction tells the jury that guilt may be inferred on the basis of evidence that does not rise to the standard of proof beyond a reasonable doubt.” This court rejected an identical argument in Lopez, reasoning: “CALCRIM No. 376 makes it quite apparent that the ‘slight’ supporting evidence is not to be considered in isolation, but together with all of the other evidence for purposes of determining whether there is proof beyond a reasonable doubt that the defendant committed [the offense]. [Citation.] The instruction expressly requires the jury to be ‘convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.’ (CALCRIM No. 376.) Thus, CALCRIM No. 376 does nothing to diminish the prosecution’s burden of proof. [Citation.]” (Lopez, supra, 198 Cal.App.4th at p. 711.)
Defendant requests this court reexamine its decision in Lopez. He discusses a number of federal cases, including United States v. Gray (5th Cir. 1980) 626 F.2d 494 (Gray), but that case does not persuade us that CALCRIM No. 376 lowers the reasonable doubt standard. As this court concluded in Lopez, Gray is distinguishable because it “dealt with a conspiracy instruction tied to the substantive element of a conspiracy charge.” (Lopez, supra, 198 Cal.App.4th at p. 712.) We further note that the California Supreme Court has repeatedly rejected similar arguments. (See People v. Grimes (2016) 1 Cal.5th 698, 730-731 [citing prior cases and rejecting argument premised upon federal conspiracy cases].) We thus conclude that CALCRIM No. 376 does not lower the prosecution’s burden of proof.
C. CALCRIM No. 1862
Defendant contends the trial court erred by instructing the jury that the return of property is not a defense to a violation of Vehicle Code section 10851. He asserts that the instruction was inappropriate because if he had the “intent to eventually return the truck,” he had a valid “defense to the charge.”
1. Proceedings Below
Pursuant to CALCRIM No. 1862, the trial court instructed the jury: “If you conclude that the People have proved that the defendant committed the crimes charged in this case, the return or offer to return the property wrongfully obtained is not a defense to those charges.”
2. Forfeiture
Defendant contends that although he did not object to CALCRIM No. 1862, he may challenge the instruction on appeal because it was “legally incorrect and violated his right to due process.” (See People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Alternatively, he contends his trial counsel was ineffective for failing to object. The Attorney General does not argue that this claim has been forfeited. We will consider the merits of defendant’s challenge to the instruction.
3. Analysis
Defendant relies primarily on People v. Edwards (1992) 8 Cal.App.4th 1092 (Edwards), in which the defendant was found guilty of grand theft. Edwards did not involve a claim of instructional error, but rather a claim that the trial court had erroneously excluded evidence that the defendant had given some of the property back to the victim. The Edwards court held that the evidence should have been admitted because it was relevant to support the defendant’s claim that his “intent at the time of the taking was not larcenous.” (Id. at p. 1101; see also People v. Sisuphan (2010) 181 Cal.App.4th 800, 813.)
In this case, the trial court did not exclude evidence that defendant intended to return the property. Defendant was permitted to testify that his intent was to return the U-Haul truck when he had the money to pay for the rental fees. Moreover, the instruction did not preclude the jury from considering whether defendant’s intent to return the truck showed he lacked the intent to deprive the owner of possession of the truck. The instruction simply told the jury that an actual return or offer to return the property is not a defense. The instruction was not legally incorrect.
D. Cumulative Error
Defendant contends that the “combined effect” of the claimed instructional errors resulted in cumulative prejudice. However, we have found no merit to any of the above claims of instructional error, and thus there can be no cumulative prejudice.
E. Restitution Order/Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective for failing to object to the calculation of the $4,925.82 restitution order. He contends that the trial court should not have calculated the daily mileage rate for the U-Haul truck rental based on a rate of 99 cents per mile, since evidence at trial established that the mileage rate was only 79 cents per mile from Monday through Thursday.
1. Proceedings Below
The probation officer’s report indicated that U-Haul had been contacted and would provide a Statement of Loss letter. At the sentencing hearing, the prosecutor indicated she was requesting the court order defendant to pay $4,925.82 in victim restitution.
The prosecutor explained how the victim restitution amount was calculated. First, the rental fee of $29.95 per day and the additional insurance fee of $14.95 per day were multiplied by 64 days (the number of days defendant had the vehicle), which amounted to $2,873.60. Next, the mileage fee was determined to be an additional $2,552.22, which was calculated by multiplying the 2,578 miles defendant had driven by 99 cents per mile. Last, defendant was credited for the amount he had paid toward the rental.
Defendant’s trial counsel objected “to the Court ordering a specific amount of restitution at this time,” since U-Haul had not made a specific request yet. Defendant’s trial counsel requested the court “impose a general order” at that time. Defendant’s trial counsel did not object to the method of calculating the restitution order.
The trial court found that “the loss to the company was part of the evidence” at trial and ordered the $4,925.82 requested by the prosecution.
2. Ineffective Assistance Standard
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability] that, ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
3. Analysis
Defendant contends his trial counsel “failed to adequately present evidence and object to the improper restitution calculation.” The Attorney General points out that the record does not reveal the reason for the failure to object and asserts that we should find defendant’s claim is only appropriately made in a petition for writ of habeas corpus. (See, e.g., People v. McDermott (2002) 28 Cal.4th 946, 1002 [ineffective assistance claim is “more appropriately decided in a habeas corpus proceeding” if “the record does not show the reasons for counsel’s actions.”].)
An ineffective assistance claim may succeed on direct appeal only if the defendant can show that “ ‘there simply could be no satisfactory explanation’ ” for his trial counsel’s failure to object to the restitution calculation. (See People v. Arce (2014) 226 Cal.App.4th 924, 930.) Here, we agree that the record shows no possible reason for defendant’s trial counsel not to object to the restitution calculation. The testimony and exhibits at trial showed that each time defendant entered into a contract for the U-Haul truck, the mileage rate was 79 cents per mile, even on the final contract, which was dated Friday, February 13, 2015. Thus, reasonable trial counsel would have argued that the mileage fee should have been calculated by multiplying the 2,578 miles defendant had driven by 79 cents per mile, for a total mileage fee of $2,036.62, instead of $2,552.22. There is a reasonable probability that had defendant’s trial counsel made that objection, the total restitution order would have been less than the $4,925.82 imposed. We will therefore remand this matter to the trial court for recalculation of the victim restitution order.
IV. DISPOSITION
The order of probation is reversed and the matter is remanded to the trial court for recalculation of victim restitution.






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BAMATTRE-MANOUKIAN, J.






WE CONCUR:






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ELIA, ACTING P.J.






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MIHARA, J.