P. v. Cornell





















Filed 12/17/12 P. v. Cornell CA2/3

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
THREE




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THE PEOPLE, Plaintiff and Respondent, v. Shawn Cornell, Defendant and Appellant.

B240805 (Los Angeles County Super. Ct. No. PA071727)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Daniel B. Feldstern, Judge. Affirmed.



Jolene
Larimore, under appointment by
the Court of Appeal, for Defendant and Appellant.



No appearance for Plaintiff and
Respondent.



Shawn
Cornell pled no contest to one count of grand
theft of personal property (Pen. Code, § 487, subd. (a)).href="#_ftn1" name="_ftnref1" title="">[1] The trial court sentenced Cornell to two
years in county jail (§ 1170, subd. (h)(1) & (2)), with credit for 28 days
served, and ordered him to pay $72,340 in restitution to the victim (§ 1202.4,
subd. (f)).href="#_ftn2" name="_ftnref2"
title="">[2] Based on the amount of restitution ordered,
Cornell appealed. We affirm the
judgment.

FACTUAL AND
PROCEDURAL BACKGROUND

1. Facts.href="#_ftn3" name="_ftnref3" title="">[3]

On September 23, 2011 and again on October 10, 2011, 26-year-old
defendant and appellant, Shawn Cornell, visited a friend, Joseph, the son of
the victim, Laurel Marchionda, at Marchionda’s home. On at least one of these two occasions,
Cornell and Joseph were playing darts and Cornell asked to go inside the house
to use the bathroom. While he was
inside, Cornell took jewelry originally estimated as worth $92,800 from jewelry
boxes in the master bedroom. Cornell later
stated that he pawned the jewelry at various shops to pay bills and to purchase
drugs.

With regard to Cornell’s “criminal
history,” as a juvenile, on June 5,
2001 he suffered a sustained petition for petty theft in violation
of section 484, subdivision (a) and was placed at home on probation.

Of the $92,800 worth of stolen jewelry,
Marchionda has recovered only $1,700 worth and her theft insurance will cover
only an additional $3,300. Marchionda’s insurance
company had paid her $5,000, some of which she had used to buy back some very
sentimental pieces of jewelry from “ ‘Kevin’s Jewelers.’ ” Five thousand dollars ($5,000) is the maximum
Marchionda’s insurance policy will pay
for stolen jewelry without “a separate jewelry policy.”

2.
Procedural history.

In an amended felony complaint
filed on October 27, 2011,
Cornell was charged in count 1 with first
degree residential burglary (§ 459), a serious felony within the meaning of
section 1192.7, subdivision (c). Count 2
alleged Cornell committed the crime of grand theft of personal property (§ 487,
subd. (a)). It was further alleged with
regard to count 2 that it is a serious or violent felony requiring registration
pursuant to section 290, subdivision (c) and that custody time for the offense
is generally to be served in state prison (§ 1170, subd. (h)(3)). In a third count, Cornell was charged with
the misdemeanor of petty theft (§ 484, subd. (a)).

At proceedings held on November 1,
2011, Cornell waived his right to a preliminary hearing, a court trial and a
jury trial. In addition, he waived his
rights to confront and cross-examine witnesses, to subpoena witnesses to
testify in his defense and his ability
to exercise his privilege against self-incrimination.


After being advised of the nature
of the charges against him and the “possible consequences of a plea of guilty
or nolo contendere,” Cornell decided to enter a plea of nolo contendere to
count 2, grand theft of personal property (§ 487, subd. (a)). The trial court determined that there was a
factual basis for the plea, accepted it and found Cornell guilty of the crime.

Cornell waived arraignment for
judgment and agreed to be sentenced that day.
The trial court then denied Cornell probation and sentenced him to the
mid-term of two years, the time to be served in county jail (§ 1170, subd.
(h)(1) & (2)). Cornell was given
presentence custody credit for 28 days (14 days actually served and 14 days of
good time/work time). In accordance with
plea negotiations, the People’s motion to dismiss counts 1 and 3 was granted
pursuant to section 1385.

Cornell was ordered to pay a $40
court security assessment (§ 1465.8, subd. (a)(1)), a $30 criminal
conviction assessment (Gov. Code, § 70373), a $200 restitution fine (§ 1202.4,
subd. (b)), attorney fees in the amount of $129 (§ 987.8) and restitution to
the victim pursuant to section 1202.4, subdivision (f), the amount of which was
to be determined at a hearing to be held on the matter.

At a hearing held on March 2, 2012,
the victim, Laurel Marchionda, testified that, prior to October 10, 2011, she
owned a “large amount of jewelry.” She
kept the jewelry in two large “chest-type” jewelry boxes, one of which was in
her bedroom and one of which was in a hallway in the upstairs portion of the
house. Most of the jewelry had been
gifts from her husband and others, some she had inherited from her parents and
other pieces she had inherited from her mother-in-law. The jewelry was “fine jewelry,” not costume
jewelry, and was made of gold and precious stones. Many of the pieces she had owned for
“30-plus” years.

Marchionda had taken some pieces of
jewelry that she had been wearing when the others were stolen to a professional
jeweler to get an estimate regarding their value. The jeweler at a store called “ ‘Ro, Ma
Jewelers,’ ” estimated the value of a necklace alone as approximately $8,000.

Marchionda had made a list of
jewelry taken based on her memory. She
attempted to organize it by type of jewelry.
She worked with the jeweler to determine the types and sizes of stones
and the weights of various pieces. In
addition, Marchionda knew that Cornell had pawned some pieces at stores called
“ ‘Coins Plus’ ” and “ ‘Kevin’s Jewelers.’ ”
She was able to take photographs and make lists of some of those items
and she purchased back six items from Kevin’s Jewelers for $1,065. Subtracting the $5,000 that her insurance
company was willing to pay, Marchionda determined she had lost $72,340 in
jewelry. In making this determination,
Marchionda had viewed pieces at the jewelry store which were similar to the
ones which had been taken. The jeweler
had then estimated their value based on the type and size of the stones and the
amount of gold in the item. Because she
had over 30 pieces, Marchionda had the jeweler assist her with several, then,
based on what he had told her, “use[d] that to the best of [her] ability to
come up with the” value of the remaining items.
In doing so, she relied on notes she had taken at the jewelry store.

Marchionda was able to purchase six
items back from Kevin’s Jewelers for $1,065.
On another day, Marchionda went to Coins Plus with the investigating
officer in the case, Detective Darland, who photographed several of the nine
items Cornell had sold to that store.
Although she had considered it, she was unable to purchase those pieces
back when she first saw them because, at that time, she did not have the money.

At the time of the hearing,
Marchionda, did not know if the pieces were still at the store. The owner was required to hold them for 30
days, but he had purchased them from Cornell in October or November. As the hearing was being held in March, it
had been much more than 30 days.
However, as of a couple of weeks before the hearing, the owner still had
the jewelry and he had contacted Marchionda to determine what he should do with
it. Marchionda had told the owner that
she had decided that she was “not going to purchase [the pieces] back.” Marchionda had made this decision in part
because of the cost and in part because Coins Plus “only purchased gold.” They had removed the stones from the rings
and other pieces and were selling just the settings. So Marchionda and her husband decided not to
spend “a thousand dollars to get back gold settings and various chains.”

Marchionda had made two lists of
the stolen jewelry. When she first
reported the theft, the police had asked her to make a list of the items stolen
and to place a value on it. Three days
after the theft, Marchionda made a five-page list of approximately 58
pieces and indicated that the value of
all the items, considered together, was approximately $92,800. Later, after speaking with the jeweler at the
store, Marchionda revised the list. The
second list is approximately three typed pages long and contains descriptions
of approximately 35 pieces of fine jewelry.

The second list is more
“descriptive” and “very detailed.”
Marchionda indicated that she is “very aware of jewelry” and “what it
looks like and [what size it is].” She
stated that she had a “pretty good memory for that type of thing.” Each piece of jewelry on her list had a
“story” and she could tell from whom she had received the piece and “describe .
. . exactly what [it] looked like.”
Marchionda then went down the list of jewelry which had been taken,
described it and told the court how she had obtained it. For example, she described the second item on
the list as a “ring, men’s large, heavy, 14-carat gold ring with large onyx
stone and one-quarter carat diamond.”
Marchionda indicated that the ring had been her father’s and that her
mother had had it made for him.
Marchionda “wore it, after [her father] passed away . . . . It was very heavy, very large.” Marchionda knew the approximate “size of the
onyx [and that] [t]he quarter-carat diamond was . . . embedded in it with a
ring of gold around it.”

In placing a value on each piece of
jewelry, Marchionda had “tried to be as fair as [she] could be.” She “tried to take [the] emotion out of it
because [she] thought that’s not what this is about.” She could not “ascribe emotional value [to
each piece], so [she] tried to be as fair as [she] could be without being
unfair to [herself].” She did not
“overinflat[e] everything [she] put down.”
She took the “middle of the road.”

At the bottom of the three-page
list of items, Marchionda indicated that, to arrive at the estimated value of
her jewelry, she “worked with a jeweler slash owner, Ramzi Azar, at ‘Ro, Ma
Jewelry.’ ” Azar had not given
Marchionda written estimates regarding what various pieces of jewelry were worth,
in part because, for example, there is “a wide discrepancy in the value of a
diamond based on the color and the clarity” of the stone. When she made her list of pieces for the
court, Marchionda did not have that information and “wouldn’t feel comfortable
stating that information because [she knew that it was] very specific.” She did, however, know about some
pieces. For example, she knew that the
diamond in her mother’s wedding ring “was of good clarity.” In addition, she knew that her gold jewelry
was 14-carat. She had only one piece
that had been made of 18-carat gold.href="#_ftn4" name="_ftnref4" title="">>[4]

In order to determine the value of
the gold jewelry, Marchionda had considered the size of the piece and whether
it was hollow or solid, then used a formula the jeweler had given her as a
gauge to go by. In helping to give her
some kind of criteria, the jeweler had weighed the necklace Marchionda had been
wearing at the time, told her that it weighed 100 grams and was worth
approximately $8,000, since a gram of gold was worth approximately $85. Marchionda had asked the jeweler for
assistance in valuing primarily “the larger items, the ones with diamonds and
stones” because those were “more difficult to assess. Then [she] got a range of the smaller items .
. . . [However, she] did not feel
comfortable” taking any more of the jeweler’s time. She “was there for a long time as it
was.” Marchionda believed that $72,340
was a fair request for restitution.

Defense counsel argued that “the
problem here is, unfortunately, in the recordkeeping[.] [W]hen people buy jewelry from fine jewelers,
. . . a higher quality jewelry, they are given the actual description in terms
of cut and clarity of the stone in question and that is kept. [Marchionda] admitted on the stand that she
couldn’t tell you that, and that’s a key component . . . in valuing jewelry . .
. . [Defense counsel believed that,]
[j]ust because [one] can eyeball something[,] . . . [she did not] think [that
was] enough to meet the burden” of showing the value of the jewelry. She asserted that “the burden is on [the
victim] by a preponderance of the evidence. . . . [I]f [one does not] have the records and [did
not] keep the records, [one] may not be able to meet that burden.” Defense counsel thought Marchionda’s estimate
of the value of her jewelry was “speculative at best.” “It was never weighed, so these are really
her best guesses. And, unfortunately, in
restitution hearings, [one] can’t value the best guess.”

The prosecutor asserted that
Marchionda’s statements regarding the items of jewelry were “detailed and very
personal . . . and [she] found that to be very dependable in terms of how she
felt about the pieces and about how she went about valuating them. [¶]
And she actually provided, created, handwritten notes. . . . And . . . she had made these handwritten notes
with a description of all of these pieces and had no value on them . . . until
she went in to the jeweler, spent some time there, and talked to him about
feeling the weight of the necklace that she had on [that day] and was able to
compare that visually with what she saw at the jewelers and was tutored about
how the valuation would proceed in terms of weight and stones, that she . . .
actually attached a [value] to the handwritten notes.” Finally, “[there had] been a consistency in
terms of all the different reports and the valuations. Each one ha[d] been more specific and more
articulate, and [the prosecutor thought] that show[ed] credibility . . . . And [she] believe[d] that the restitution
amount that [Marchionda was] asking for [was] supported by the evidence
received [at the] hearing.”

Defense counsel argued that, the
first figure Marchionda gave to the police regarding the value of the jewelry
taken was $93,000. She then sat down,
made an exhaustive list and went to the jewelry store for verification of her
estimates. “So she had a figure in
mind . . . .” The
defense “would[,] [also,] at this point . . . submit that [Marchionda] had the
ability to contact others who purchased some of this jewelry and ask them [what
it cost]. We have no idea what these
items were purchased for at the time.
And, again, we don’t have the detail on the jewelry[.] [Counsel believed] jewelry [could] be very
specifically, with the right information, valued. Otherwise, the values [were] all specious.”

The trial court responded,
“Okay. [These are] all fairly older
items in terms of family gifts and so forth.
I would add, in response to your counter argument, that the estimate
which is now 72,000 was 93,000. So she’s
actually dropped this by close to $21,000.
That does not strike me as a person who is trying [to] inflate [the
value of the jewelry] and reach a conclusion to satisfy herself without having
relied upon the expertise of the jeweler . . . .”

After hearing further argument
regarding the value of the gold at the Coins Plus store, the trial court made
“the following finding based upon the evidence that [it] heard: [¶]
That Mr. Cornell, for the stolen property, owes the victim in this case,
Laurel Marchionda, the sum of $72,340.”



With regard to how Cornell was to
make restitution, the prosecutor indicated that “[t]he Department of
Corrections deals with it.” The
prosecutor stated that she would “provide the href="http://www.fearnotlaw.com/">Department of Corrections with the
information; however, since [Cornell was not going to be housed] . . . with the
Department of Corrections, [he was to be] housed at county jail, [she would]
find out what [she could] do to have county jail actually do [to collect the restitution.]” The trial court then calendared a hearing for
March 29, 2012, to determine how the matter should be handled.

At a hearing held on April 11,
2012, the prosecutor indicated that, under the circumstances presented, the
trial court should “order the amount of restitution per civil judgment.” The trial court responded, “All right. If the People make that request and file the
appropriate paperwork for that, I would consider signing it; but the order . .
. is that he pay the victim in the case $72,340 plus 10 percent interest per
annum. And that will be paid in
accordance with [the] code section.
[¶] . . . [A]t this point it’s a
standing order that he pay.”

Cornell filed a timely href="http://www.mcmillanlaw.com/">notice of appeal on April 23, 2012. In the notice, Cornell stated, “This appeal
is only based on that portion of the sentence related to the victim restitution
order calculation that resulted from a formal contested hearing held on March 12,
2012.”

>CONTENTIONS

After examination of the record,
appellate counsel filed an opening brief which raised no issues and requested
this court to conduct an independent review of the record. By notice filed October 12, 2012, the clerk
of this court advised Cornell to submit within 30 days any contentions, grounds
of appeal or arguments he wished this court to consider. No response has been received to date.

>REVIEW ON APPEAL

We have examined the entire record
and are satisfied counsel has complied fully with counsel’s
responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)



DISPOSITION

The judgment
is affirmed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS











> KITCHING,
J.





We concur:





KLEIN, P. J.











CROSKEY, J.