P. v. Hurth

 

 

 

Filed 1/30/14  P. v. Hurth CA1/1

>NOT TO BE PUBLISHED IN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opinion has not been certified for publication or ordered published for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

 

FIRST APPELLATE DISTRICT

 

DIVISION ONE

 

 
>

THE PEOPLE,             Plaintiff and Respondent, v. MAURICE PIERRE HURTH,             Defendant and Appellant.	A135072         (Solano County       Super. Ct. No. FCR288339)
THE PEOPLE,             Plaintiff and Respondent, v. MAURICE PIERRE HURTH,             Defendant and Appellant.	A137357         (Solano County       Super. Ct. Nos. FCR288339)

 

>Introduction

            These consolidated appeals arise
from defendant Maurice P. Hurth’s conviction of felony vandalism (Pen. Code, §
594, subd. (a)).href="#_ftn1" name="_ftnref1"
title="">^[1]
 In appeal No. A135072, he contends the href="http://www.fearnotlaw.com/">trial court abused its discretion in
denying a mistrial after the victim, Hanif Adisa, in violation of an in limine
ruling, briefly alluded in his testimony to defendant’s alleged commission of
an unrelated “home invasion.”  In appeal
No. A137357, Hurth contends the trial court abused its discretion in the amount of restitution
ordered following revocation of his probation
and sentencing.  We conclude there was no
abuse of discretion and affirm defendant’s conviction and the href="http://www.sandiegohealthdirectory.com/">restitution order.   

>Background

            In November 2010, Hanif Adisa and
Tamica Darnes dated for three weeks.  They
remained in contact.  Within several
months, defendant had developed a relationship with Darnes and in February
2011, he began harassing Adisa, warning him to “leave my bitch alone.”

            On April 22, 2011, Darnes called Adisa and asked him to drive to her house.  Adisa assumed Darnes wanted him to take her
someplace, as she had asked for rides before.  When Adisa arrived, he pulled into the
driveway and called Darnes on her cell phone to let her know he was outside.  Instead of Darnes, defendant walked out and
approached the car.  Adisa rolled down his
window, and defendant asked Adisa who he was there to see, to which Adisa did
not reply.  Darnes then opened the front
door of the house, and defendant walked up to speak with her.  Adisa could not hear their conversation, and Darnes
shortly told Adisa to leave.  When Adisa saw
defendant pick up a large rock, approximately six to eight inches in diameter,
he began backing his car out of the driveway.  Defendant threw the rock, which struck the rear
window of Adisa’s car, shattering it and denting the window frame.  Adisa parked the car, stepped out of it, and
shut the door. When he shut the door, the rear window broke completely.

            In November, Adisa testified at a
preliminary hearing against defendant and referred to a “home invasion” robbery
defendant had committed.  Thereafter,
defendant and Darnes called Adisa. 
Defendant said, “hey, nigga, I got some news for you.”  Darnes, in turn, href="http://www.fearnotlaw.com/">threatened, “if [he] continued to
prosecute [defendant] then [Adisa’s] place would be shot up.”  Adisa told Darnes he was going to get a
restraining order against her, and that he already had one against defendant.  Adisa then told the police about the phone call.


            The Solano County District Attorney then
filed an information charging defendant with one count of vandalism over $400
and one count of dissuading a witness from prosecuting a crime.

            Before trial, defendant made an in
limine motion “to prohibit the prosecutor and his witnesses from offering testimony
that Mr. Hurth has been to prison or is or has been on parole or mentioning
other alleged criminal conduct.”  The
motion claimed Adisa’s statement at the preliminary hearing that defendant had
“committed [a] home invasion robbery in March 2011[was] . . . highly prejudicial
to Mr. Hurth.”  The motion asked the
court to order “the prosecutor to explicitly admonish Mr. Adisa not to testify
about these subject matters.”  The court
granted the motion, ordering the prosecutor to “caution [his] witnesses not to
offer up that Mr. Hurth has been to prison or on parole or anything like that.”
 A week later, the judge who was going to
preside over the trial revisited the in limine ruling and ruled “commenting on
prison or parole . . . far outweighs the probative value of the testimony; and,
therefore, I am going to direct . . . the district attorney to instruct Mr.
Adisa . . . to refrain from bringing it up there.”

            At trial, the prosecutor asked Adisa
if he had told police he was “afraid of Mr. Hurth” or if he was “concerned that
Mr. Hurth would follow through about the threat given to [him]” Adisa replied,
“Well, I said—I think I said that I was concerned because of his threats
before, and he had in, um, March called . . . .”  Defense counsel objected “this goes into one
of the Court’s pretrial rulings.”  The
objection was overruled. The prosecutor then continued by asking, “[y]ou said
you were concerned because of what reason?” Adisa responded “Yes, in March, um,
allegedly a home invasion was, uh, committed by Hurth.” Defense
counsel immediately objected and moved to strike the answer, stating “[l]ack of
personal knowledge, 352, and relevance.” The court sustained the
objection.  Adisa continued to testify that
defendant had made “many threats,” to which defense counsel also objected. The
court overruled this objection, and Adisa continued to testify he was concerned
because of the “many threats that [he] had received since February and the type
of threats. . . .”

            Following the prosecution’s
case, defendant moved for a mistrial.  After
hearing argument, the trial court observed “[o]bviously it shouldn’t have been
said.  That’s why the objection was
sustained and the testimony stricken.”  The court concluded, “I certainly don’t think
it reaches the level of a mistrial” and denied the motion.

            Trial
continued, and the jury found defendant guilty of count one, vandalism (§ 594, subd. (a)), but not guilty of count two,
dissuading a witness from prosecuting a crime (§ 136.1,
subd. (b)(2)).  On March 13, 2012,
the trial court suspended imposition of sentence and placed defendant on three
years formal probation, subject to numerous terms and conditions, including
serving 270 days in county jail.

            Six
months later, on September 11,
2012, the district attorney filed a new information which also
served as a notice of probation violation.  Two weeks later an amended information was
filed, charging defendant with possession of contraband/illegal substances
(methamphetamine) in a jail facility (§ 4573.6) and alleging a prior
strike (§ 1170.12, subds. (a)–(d)) and two prior prison terms (§ 667.5,
subd. (b)). 

            On
October 29, as part of a global disposition, defendant admitted violating his
probation in the vandalism case by “failing to obey all laws.”  The trial court then terminated probation and sentenced
defendant in both the new methamphetamine case and the vandalism case.  As to the latter, defendant was sentenced to
two years in state prison, to run concurrently with his sentence in the drug
case.  The court struck the strike and stayed
execution on the two prison priors. 

            Two
weeks later, on November 14, the trial court held a restitution hearing.  Defendant waived his appearance.  The victim, Adisa, testified, recounting what
had occurred, that he had paid $693.40 to have the back window replaced, and
that he had obtained two estimates to repair the damage to the car (specifically,
the back window frame).  The first, for
$1,896.94, was for repair that entailed removing and reseating the rear window
to insure no leakage.  The second, for
$992.93, was for an attempted repair without removal of the window.  The body shop providing this estimate made
clear it could not guarantee the window would not leak, and if it did, there
would be a need for additional work. 

            The
prosecution argued Adisa was entitled to a total of $2,590.34 in restitution to
have all the repairs done “correctly.” 
Defense counsel argued Adisa would receive a “windfall” if the amount
was above the lower repair estimate of $992.93. 
He asserted that if the more problematic repair effort failed, Adisa
could seek additional restitution for further repair work.  The trial court awarded $2,590.34—$693.40 for
the cost of repairing the rear window and $1,896.94 “to do a proper repair on
the body of the car.” 

>Discussion

The Mistrial Motion

            A
motion for mistrial “is directed to the sound
discretion of the trial court.  We have
explained that “ ‘[a] mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.  [Citation.]  Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is
vested with considerable discretion in ruling on mistrial motions.’ â€  (People
v. Jenkins (2000) 22 Cal.4th 900, 985–986; see also People v. Lightsey (2012) 54 Cal.4th 668, 718.) “We review a
trial court’s ruling on a motion for mistrial for abuse of discretion.  [Citation.]  Such a motion should only be granted when a
defendant’s ‘chances of receiving a fair trial have been irreparably damaged.’  [Citation.]” 
(People v. >Valdez (2004) 32 Cal.4th
73, 128.)

            Even assuming Adisa’s mention of the
“home invasion” violated the trial court’s in limine ruling, there was no
resulting prejudice to defendant.  Adisa’s
statement, one line amidst nearly two-hundred pages of testimony, was fleeting.
 (See, e.g., People v. Bolden (2002) 29 Cal.4th 515, 554–555 [upholding denial
of mistrial motion, finding it “doubtful that any reasonable juror would infer
from the [witness’s] fleeting reference to a parole office that defendant had
served a prison term for a prior felony conviction”].)  Further, defendant immediately
objected, the trial court sustained it, and, at the close of evidence, the
court further instructed the jury:  â€œIf I
sustained an objection, you must ignore the question . . . .  If I ordered the testimony stricken from the
record, you must disregard it and must not consider that testimony for any
purpose.”  When a trial court sustains
defense objections and admonishes the jury to disregard particular comments, we
must assume the jury followed the court’s admonition and prejudice was avoided.href="#_ftn2" name="_ftnref2" title="">[2]  (See People
v. Bennett (2009) 45 Cal.4th
577, 612 [“We assume the jury followed the admonition and that prejudice was therefore
avoided.”]; see also People v. Yoder (1979)
100 Cal.App.3d 333, 338 [“We must also assume that the
jurors are intelligent persons and capable of understanding and correlating all
jury instructions which are given.”].) 

            Accordingly,
defendant has not shown his chances of receiving a fair trial were irreparably
damaged, and we conclude the trial did not abuse its discretion in denying his
motion for mistrial.  For the same
reasons, “we reject defendant’s contentions that the trial court . . . impaired
his right to due process of law or to an impartial jury.”  (People
v. Jenkins, supra, 22 Cal.4th at
p. 986.)

The Restitution Order

            Section 1202.4 governs restitution
in criminal cases.  (§ 1202.4)  The term “loss” as used in the statute is to
be “broadly and liberally” construed.  (>People v. Phu (2009) 179 Cal.App.4th
280, 283 (Phu).)  A trial court “may compensate a victim for any
economic loss which is proved to be the direct result of the defendant’s
criminal behavior, even if not specifically enumerated in the statute.”  (People
v. Moore (2009)
177 Cal.App.4th 1229, 1232.)  Accordingly,
the trial court has broad discretion in choosing a method for calculating
restitution, as long as the method is rationally designed to determine the
victim’s economic loss. (See People v.
Maheshwari (2003) 107 Cal.App.4th 1406, 1409–1410.)  â€œThere is no requirement the restitution order
be limited to the exact amount of the loss in which the defendant is actually
found culpable, nor is there any requirement the order reflect the amount of
damages that might be recoverable in a civil action.”  (People
v. Carbajal (1995) 10 Cal.4th 1114, 1121.)  The victim’s assessment of economic loss is
prima facie evidence of loss for the purposes of restitution.  (People
v. Gemelli (2008) 161 Cal.App.4th 1539, 1543.)  Once the victim makes a prima facie showing,
the burden shifts to the defendant to establish that the amount of loss is less
than that claimed by the victim.  (>People v. >Taylor (2011) 197 Cal.App.4th 757, 761.)

            On
appeal we presume a restitution award is correct.  (People
v. Giordano (2007) 42 Cal.4th 644, 666.)  The amount of restitution ordered will not be
reversed on appeal absent an abuse of discretion.  Thus, while the trial court may not make an
order that is arbitrary or capricious, the order must be affirmed if there is any
factual and rational basis for the amount awarded.  (People
v. Holmberg (2011) 195 Cal.App.4th 1310, 1320; Phu, supra, 179 Cal.App.4th at p. 284.)  

            Defendant’s
quarrel with the restitution order is with the award of the higher estimated
amount for the repair of the window frame. 
He contends Adisa should have been required to try the less costly
repair first, and if unsuccessful, to return to the court for additional restitution.  Defendant cites no case holding that a victim
must be put to the inconvenience of first trying a problematic repair, rather
than just having his or her property repaired correctly the first time, and
that a trial court abuses its discretion by awarding an amount that >insures the victim is made whole and
placed in the same position he was in before the felony vandalism. 

            Here,
the trial court had a rational reason to award the higher of the two estimates,
and the higher estimate supported the trial court’s finding that that amount represented
full compensation to Adisa.  (See >In re Alexander A. (2011) 192 Cal.App.4th
847, 851–852 [garage estimate for repairs of vandalized vehicle].)href="#_ftn3" name="_ftnref3" title="">[3]

            Defendant’s reliance on People
v. Stanley (2012) 54 Cal.4th 734,
is misplaced.  In that case, the victim
purchased her truck for $950, but the estimated cost to repair the vandalism
damage inflicted by the defendant was $2,812.94.  The trial court ordered restitution in the
amount of the estimated repair costs.  (>Id. at p. 736.)  The defendant did challenge the
reasonableness of the repair estimate (made by a body shop), but rather,
asserted restitution was limited to the price the victim had paid for the
vehicle plus what he called a “surcharge” to reflect the inconvenience to the
victim in having to replace the truck.  (>Id. at p. 739.)  The Supreme Court disagreed, explaining “the
trial court had discretion to award the victim as restitution the ‘actual cost
of repairing’ her vandalized truck, so long as repair was ‘possible.’ â€  (Ibid.)  The court also noted in passing that the
trial court had observed that if the repair ended up costing less than the
estimate, “ ‘then restitution will be reduced appropriately.’ ”  (Id. at
p. 738.)  >Stanley> by no means suggests, as defendant argues, that a restitution order
cannot be based on a legitimate repair estimate.  Nor is the case any kind of blessing on a
problematic repair, rather than one that will insure the vehicle is actually
repaired.      

>Disposition

            The judgment of conviction and the
restitution order are affirmed.

 

 

                                                                                    _________________________

                                                                                    Banke,
J.

 

 

We concur:

 

 

_________________________

Margulies,
Acting P. J.

 

 

_________________________

Dondero, J.