P. v. Ford
Filed 7/25/13 P. v. Ford CA6
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opinion has not been certified for publication or ordered published for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.
DEARYL TUCKER FORD,
Defendant and
Appellant.
H037570
(Santa Clara
County
Super. Ct.
No. C1088686)
A jury found defendant Dearyl Tucker
Ford guilty of: (1)
and (3) vandalism. (Pen. Code, § 460,
subd. (b); Veh. Code, § 10851, subd. (a); Pen. Code § 594, subds. (a) &
(b)(2)(A)). Defendant claims that the
court erred in ordering restitution to one of the victims, and that trial
counsel provided ineffective assistance
of counsel at the restitution hearing.
We deny the claim of ineffective assistance of counsel and affirm the court’s
restitution order.
title="">[1]
BACKGROUND
Defendant stole a 1967 Corvette
Stingray from a garage where it was stored for repairs.
name="_ftnref2" title="">[2] The owners recovered the car, but it had
sustained damage. The trial court
ordered restitution payments to the owners of the car and to the owner of the
garage.
I.
Order
Relating to the Owner of the Garage
Defendant stole the Corvette from a
garage owned by Max Krewson. Krewson
testified that a lock plate was missing from a rear door of the garage after
the theft, and the door handle did not work properly. He paid $311 to replace the lock plate and
door handle, and to rekey two front doors.
Krewson presented a bill from a locksmith to substantiate the expense,
including $130 for the rekeying of the doors.
Defendant, arguing lack of notice, objected to the amount of $130 for
the rekeying. Over defendant’s
objection, the trial court awarded Krewson restitution in the total amount of
$311.
II.
Order
Relating to the Owners of the Car
The Corvette belonged to David and
Susan Duarte. Ms. Duarte testified that
the Corvette was in perfect condition at the time it was stolen. When police recovered the Corvette, they
observed “[a] tremendous amount of paint damage to pretty much most of the
car—the hood area, both sides along the door, and along the trunk area.†The car appeared to be covered in primer, and
the interior of the car was damaged. Ms.
Duarte testified that the dash board appeared to have been cut with a razor
blade, and the “kit panel†on the right-hand side had been scuffed. The battery was also missing.
Frank DeSantiago, the owner of the
auto body shop that repaired the Corvette, testified at the restitution
hearing. DeSantiago explained that the
nature of the damage and the unique, one-piece fiberglass construction of the
Corvette body precluded spot repairs, requiring instead that the paint be
removed from the entire car. DeSantiago
testified that the total cost of repairing the car’s exterior was $15,461,
including $11,774 in labor costs, and $2,911 in materials. A claims supervisor from Farmers Insurance
testified that additional costs were incurred in the amounts of $2,433 for
repairs to the interior, $198 for a new battery, and $501 for towing and
storage.
Defendant’s expert opined that
DeSantiago had “inflated†some of the repair times (resulting in inflated labor
charges), and that the cost was too high.
The expert testified that instead of stripping the paint and repainting
the entire car, he would have “color sanded†and polished the paint, or he would
have used a chemical stripper to try to remove the primer. However, on cross-examination, he admitted
that he was not a Corvette specialist, and he had never personally inspected
the stolen Corvette. His testimony was
based solely on blurry photographs of the vehicle. He conceded that the time necessary for
repair would depend on the nature of the damage. But he did not know whether the damage to the
exterior of the car was due to primer, spray paint, sanding, or any other
cause. He admitted that without knowing
the nature of the damage, he could not determine what repairs were
necessary.
The trial court noted the
defendant’s expert’s failure to identify specifically what costs were inflated
and on what basis he had formed his opinions.
The court, crediting the testimony of DeSantiago and the claims
supervisor, awarded total restitution in the amount of $18,594.56 to David
Duarte.
DISCUSSION
I.
Standard
of Review
We review the trial court's
restitution order for abuse of discretion.
(People v. Giordano (2007) 42
Cal.4th 644, 663.) “Under this standard,
while a trial court has broad discretion to choose a method for calculating the
amount of restitution, it must employ a method that is rationally designed to
determine the surviving victim’s economic loss.†(Id.
at pp. 663-664.) “No abuse of discretion
will be found when there is a factual or rational basis for the amount of
restitution ordered.†(
113 Cal.App.4th 924, 927.)
II.
Restitution
to the Owner of the Garage
Defendant contends the trial court
erred in ordering $130 of restitution to Krewson for rekeying the garage doors
because: (1) defendant was not given
adequate notice of or an opportunity to respond to the claim; and (2) the evidence
was insufficient to show that defendant caused the loss. We reject defendant’s claims.
First, defendant received adequate
notice of Krewson’s restitution claim.
Defendant claims “the probation report does not state who claimed a $200
loss or what caused the loss.†Defendant
is incorrect. The probation report
summarizes Krewson’s statement to the probation officer. Krewson stated that he suffered a financial
loss of $200 to his back door.
Accordingly, the probation report recommended a restitution fine of $200
to Krewson. Although the trial court
ultimately awarded a slightly higher amount, the probation report gave
defendant adequate notice that Krewson’s damages in that approximate amount
would be at issue in the restitution hearing.
(See People v. Blankenship
(1989) 213 Cal.App.3d 992, 997 [defendant's due process rights are protected
when the probation report gives notice of the amount of restitution claimed].)
Second, the evidence is sufficient
to support the amount of restitution for the rekeying of Krewson’s front
doors. Krewson substantiated the amount
of the expense via the locksmith’s bill.
Furthermore, the evidence presented at trial demonstrated that Krewson
justifiably incurred the expense as a result of defendant’s conduct. Shortly before the theft, a witness at the
garage saw one of defendant’s associates remove an object from Krewson’s desk
and leave the garage with defendant.
Police testified that the manner in which the lock plate on the garage
door had been removed indicated that the plate was removed from the inside of
the garage. Krewson could reasonably
infer that the thief still had a key to the garage, causing him to rekey the
locks. The evidence is therefore
sufficient to form a “factual or rational basis†for the restitution
award. (People v. Hudson, supra, 113 Cal.App.4th at p. 927.)
III.
Restitution
to the Owners of the Corvette
Defendant contends trial counsel
provided ineffective assistance of counsel with respect to the restitution
award to David Duarte, owner of the Corvette.
Defendant, noting the trial court’s observation that his expert lacked
specifics, argues that trial counsel should have elicited more specific
testimony from the expert to identify particular flaws in DeSantiago’s
estimates. Defendant claims trial
counsel should have asked his expert exactly which of DeSantiago’s repair times
were inflated, and what a reasonable repair time would have been. Defendant’s claim fails because he cannot
show that he was prejudiced by counsel’s conduct.
A.
“To prevail on a claim of ineffective assistance of
counsel, a defendant must show both that counsel's performance was deficient
and that the deficient performance prejudiced the defense. [Citations.]
Counsel’s performance was deficient if the representation fell below an
objective standard of reasonableness under prevailing professional norms. [Citation.]
Prejudice exists where there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.†(People
v. Benavides (2005) 35 Cal.4th 69, 92-93, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.)
“ ‘Tactical errors are generally not deemed
reversible; and counsel’s decision-making must be evaluated in the context of
the available facts. [Citation.] To the extent the record on appeal fails to
disclose why counsel acted or failed to act in the manner challenged, [the
appellate court] will affirm the judgment “unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.†’ †(
623-624.) “ ‘Finally, prejudice must be
affirmatively proved; the record must demonstrate “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.†’ †(Id. at p. 624.)
“It is the defendant’s burden on appeal [or in a
petition for writ of habeas corpus] to show that he or she was denied effective
assistance of counsel and is entitled to relief. [Citations.] ‘[T]he burden of proof that the defendant
must meet in order to establish his [or her] entitlement to relief on an ineffective-assistance
claim is preponderance of the evidence.’
[Citation.]†(
1016.)
B.
Defendant cites no case law to
support his contention that trial counsel’s failure to ask specific questions
of an expert constituted deficient conduct.
But we need not decide whether trial counsel’s conduct was deficient
because the record shows there is no reasonable probability that trial
counsel’s conduct would have resulted in a different outcome.
In particular, trial counsel could
not have successfully elicited more specific testimony from the expert because
the expert had no basis on which to offer such testimony. The expert admitted that he was not a
Corvette specialist, and more critically, that he had never actually inspected the
Corvette. He admitted that he did not
know the nature of the damage to the car’s exterior, or what type of substance
had been applied to it. Furthermore, he
admitted that without knowing the nature of the damage he could not determine
what repairs were necessary. Without
knowing what repairs were necessary, he could not have reliably testified as to
how an alternate repair method would have required less time or
expenditure. By contrast, DeSantiago was
able to examine the Corvette in person, and his shop actually performed the
repairs. When trial counsel asked
DeSantiago exactly how he knew the car’s paint had been damaged, he responded,
“Because I looked at it. I have eyeballs
to see with. I’ve been doing this all my
life.â€
Thus, even if defendant’s trial
counsel had been able to elicit more specific testimony from his expert, it is
unlikely that the trial court would have credited such testimony against the
evidence offered by the prosecution.
Because defendant does not demonstrate a reasonable probability of a
different outcome, he cannot show he was prejudiced. His claim of ineffective assistance of
counsel fails.
DISPOSITION
The judgment is affirmed.
_________________________
MÃRQUEZ,
J.
WE CONCUR:
_________________________
ELIA, ACTING P.J.
____________________________________
BAMATTRE-MANOUKIAN, J.
name="_ftn1" title="">[1]
Defendant also has filed a petition for writ of habeas corpus, which we have
ordered considered with the appeal. We
have disposed of the petition by separate order filed this day. (See Cal. Rules of Court, rule
8.387(b)(2)(B).)
name="_ftn2" title="">[2] We
described the facts of the offense more fully in our opinion on defendant’s
appeal from a denial of his motion to suppress.
(People v. Ford (H037151).)
