P. v. Au
Filed 6/5/08 P. v. Au CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, Plaintiff and Respondent, v. RENEE TAIYEAN AU, Defendant and Appellant. | G039387 (Super. Ct. No. 04CF0123) O P I N I O N |
Appeal from a postjudgment order of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Charles Ragland and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Renee Taiyean Au of two counts of stalking in violation of Penal Code section 646.9, subdivision (a). (All further statutory references are to the Penal Code.) The trial court then entered an order under section 1202.4 directing defendant to pay restitution to Jon Grazer, one of her two victims. Defendant appealed both the judgment and restitution order. This court issued separate opinions affirming defendants conviction (People v. Au (Oct. 17, 2006, G034978) [nonpub. opn.]), but reversing the restitution order with directions to conduct a new hearing (People v. Au (Oct. 17, 2006, G035711) [nonpub. opn.]).
Upon remand, the prosecution presented evidence supporting an award of $18,755.47 in restitution to Grazer that included receipts for repairs to three automobiles damaged by defendant, including $2,621.03 Grazer paid to repair a Toyota Camry owned by Susanna Earnest. Defendant objected to this item of the restitution request on the ground Grazer does not own a Toyota Camery [sic]. In a supporting declaration Grazer stated [t]hese are repairs for which I was responsible. The trial court conducted a new restitution hearing and entered a new order, directing defendant to pay Grazer $18,755.47, which included the cost of repairing Earnests car.
Defendant again appeals, contending the trial court erred in awarding restitution . . . for the repairs to . . . Earnests vehicle, because she was not a victim of the crimes with which [defendant] was charged and . . . convicted . . . . In response, the Attorney General argues [t]he trial court properly awarded restitution because it ordered payment to Grazer, admittedly one of defendants stalking victims, for the amount he paid to repair the damage defendant cause to Earnests car as part of [defendants] pattern of stalking . . . Grazer . . . . We agree with the Attorney Generals analysis and affirm the restitution order.
Section 1202.4 declares, in 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 victims or any other showing to the court. ( 1202.4, subd. (f).) [T]he restitution order shall . . . identify each
victim and each loss to which it pertains, and shall 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, but not limited
to . . . [] . . . payment for the value of . . . damaged property, which shall be . . . the actual cost of repairing the property when repair is possible. ( 1202.4, subd. (f)(3)(A).)
Both a victims right to restitution (People v. Baker (2005) 126 Cal.App.4th 463, 467) and the scope of economic losses for which a victim may be compensated (People v. Keichler (2005) 129 Cal.App.4th 1039, 1046) are broadly and liberally construed. The test is . . . whether [the victims expenses] were a determined economic loss incurred as a result of the defendants criminal conduct. [Citation.] (People v. Pinedo (1998) 60 Cal.App.4th 1403, 1405-1406.)
An appellate court reviews a restitution order for abuse of discretion (People v. Giordano (2007) 42 Cal.4th 644, 663) and [a] restitution order that is based on a demonstrable error of law constitutes an abuse of the trial courts discretion. [Citation.] (People v. Woods (2008) 161 Cal.App.4th 1045, 1049.) But [w]hen there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court. [Citation.] (People v. Dalvito (1997) 56 Cal.App.4th 557, 562.)
Defendant argues Earnest was not a direct victim of her crimes and thus not entitled to restitution. She also suggests the effect of the trial courts ruling was to improperly use the criminal courts to resolve her civil liability for vandalizing Earnests car. (See People v. Whisenand (1995) 37 Cal.App.4th 1383, 1391 [Disposing of civil liability cannot be a function of restitution in a criminal case].) But the trial court did not award any recovery to Earnest. Rather, as the Attorney General notes, the court awarded the amount to repair Earnests car to Grazer, clearly one of defendants direct victims, because he paid for it. Thus, the issue is not Earnests status as a victim, but Grazers entitlement to recover from defendant his payment to repair Earnests vehicle.
The evidence at defendants trial on the criminal charges reflects she scratched both sides of Earnests car with a key while it was parked outside Grazers residence. The prosecution also introduced prior misconduct evidence that defendant damaged the car of a former boyfriends female acquaintance admittedly because she was mad at her boyfriend. This evidence, introduced in part to show defendants criminal intent, supports an inference defendant similarly damaged Earnests car to exact revenge on Grazer for rejecting her and dating another woman. Consequently, the factual and rational bases are clearly within the purposes of criminal restitution, i.e., providing compensation to victims and promoting rehabilitation of the offender. [Citation.] (People v. Dalvito, supra, 56 Cal.App.4th at p. 562.) Thus, the trial court did not abuse its discretion in awarding to Grazer the amount he paid to repair Earnests car.
The restitution order is affirmed.
RYLAARSDAM, J.
WE CONCUR:
SILLS, P. J.
ARONSON, J.
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