P. v. Martinez

Filed 3/26/08 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. OHara, Judge.

Grace Lidia Suarez, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a jury trial, Efren Gonzalez Martinez (appellant), charged and tried as Miguel Angel Martinez, was convicted of felony evading a police officer (Veh. Code,  2800.2, subd. (a)). The trial court sentenced appellant to the midterm of two years in prison, less 267 days credit. Appellant was ordered to pay a $400 restitution fine (Pen. Code,  1202.4, subd. (b)); a $400 restitution fine stayed pending successful completion of parole (id.,  1202.45); a $20 court security fee (id.,  1465.8); and $500 restitution to victim Ben Webb (id.,  1202.4, subd. (f)). Appellant contests only the $500 direct restitution on various theories. We affirm.

FACTS

At approximately 6:50 a.m. on December 17, 2006, police officer Richard Carillo was on patrol and noticed a white GMC Yukon without a front license plate being driven by appellant. As appellant drove past him, Carillo noticed that appellant was not wearing a seatbelt and that he resembled a man wanted in a homicide investigation. Carillo, in a marked police vehicle, pulled behind appellant and kept pace with him, which he estimated to be 60 miles per hour in a 35-mile-per-hour zone.

Officer Carillo activated his overhead lights to initiate a traffic stop. Appellant pulled into a parking lot, but before Carillo could get out of his vehicle, appellant sped through the parking lot at approximately 70 miles per hour. Carillo activated his siren and initiated a high-speed pursuit of appellant.

Appellant exited the parking lot by driving over the sidewalk and a raised flower bed. When he reached the roadway, he accelerated and continued through a 25-mile-per-hour school zone at approximately 60 to 70 miles per hour, running several stop signs in the process. The pursuit ended when appellant drove through an empty lot and collided into a fence. The fence, which had wooden upright posts and metal wire, ended up wrapped around the tires of and underneath appellants vehicle.

As Officer Carillo pulled up behind the vehicle, appellant exited the vehicle and ran. Appellant did not stop when Carillo ordered him to do so. Appellant was eventually apprehended with the help of additional officers.

DISCUSSION

Appellant claims that the trial court erred when it imposed restitution of $500 for the damaged fence. As argued by appellant, the restitution should be reversed because there was no evidence at trial regarding ownership of the fence or of the cost of repairing it, nor was he convicted of vandalizing the fence. In supplemental briefing, appellant claims direct restitution is a form of punishment and is therefore subject to the requirements of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), United States v. Booker (2005) 543 U.S. 220 (Booker), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). We disagree.

Crime victims have been afforded both constitutional and statutory rights to restitution in California. The principle that an offender can be required, in proper cases, to make restitution to his victim is an accepted one. (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 747.) Article I, section 28, subdivision (b) of the California Constitution, states in part: It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. [] Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. (See also People v. Mearns (2002) 97 Cal.App.4th 493, 498.) [A] crime victim is entitled to restitution for any economic loss incurred as the result of the defendants criminal activity. (People v. Ortiz (1997) 53 Cal.App.4th 791, 798.) A victims restitution right is to be broadly and liberally construed. (People v. Baker (2005) 126 Cal.App.4th 463, 467.)

The court must order direct victim restitution in every case in which a victim has suffered economic loss as a result of the defendants conduct, and the restitution order shall be of a dollar amount sufficient to fully reimburse the victim for economic losses caused by the defendants criminal conduct. (People v. Maheshwari (2003) 107 Cal.App.4th 1406, 1409; see Pen. Code,  1202.4, subd. (f)(3).) The trial court is vested with broad discretion in ordering and determining the amount of restitution. (People v. Baker, supra, 126 Cal.App.4th at p. 467; People v. Hove (1999) 76 Cal.App.4th 1266, 1275.) The trial courts allocation of restitutionary responsibility must be sustained unless it constitutes an abuse of discretion or rests upon a demonstrable error of law. (People v. Draut (1999) 73 Cal.App.4th 577, 581, quoting In re S.S. (1995) 37 Cal.App.4th 543, 550.)

Under that standard, we are required to keep in mind that even though the trial court has broad discretion in making a restitution award, that discretion is not unlimited. While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious. [Citations.] (People v. Mearns, supra, 97 Cal.App.4th at pp. 498-499; see also People v. Thygesen (1999) 69 Cal.App.4th 988, 992.)

When 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. [Citations.] (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.)

Here, the probation report recommended that appellant pay Ben Webb restitution in the amount of $500. According to the report, the fence belonged to Mr. Webb and, although the probation officers attempts to contact Mr. Webb had been unsuccessful, Mr. Webb had previously reported to police that damage to the fence was $500. At sentencing, the trial court followed the probation report recommendation and ordered appellant to pay $500, pursuant to Penal Code section 1202.4, subdivision (f), with interest to accrue at the rate of ten percent per annum, effective June 17, 2007, to be collected by the Department of Corrections who shall pay such amounts as received by [Mr.] Webb.

Defense counsel objected to the direct restitution, claiming that the amount of damages was just an assumption based on an initial estimate in the police report. The trial court disagreed, stating that there was damage to a fence that we heard about during the trial. It is also listed in the police report. The listed victim indicated it was a $500 damage , which I dont think is unreasonable.

Appellant first contends that the probation report was insufficient evidence upon which to base a restitution order. Appellant relies on People v. Vournazos (1988) 198 Cal.App.3d 948, in which the court held that hearsay statements in the probation report, which itemized stolen or damaged items and asserted values and repair costs, were an insufficient basis upon which to order restitution. (Id. at pp. 958-959.) But Vournazos has been harshly criticized and rejected by subsequent cases (In re S.S., supra, 37 Cal.App.4th at pp. 546-547; People v. Foster (1993) 14 Cal.App.4th 939, 945-946), and numerous cases have found the courts reliance upon probation and similar reports proper. (See, e.g., People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 [when probation report includes information on amount of victims loss and a recommendation, burden shifts to defendant to challenge amount]; In re S.S., supra, at pp. 546-548 [when items, amount and sources of losses are identified in probation report, defendant has burden of refuting them]; People v. Hove, supra, 76 Cal.App.4th at pp. 1274-1275 [memorandum prepared by victim for probation officer listing items and costs is sufficient evidence of loss]; People v. Pinedo (1998) 60 Cal.App.4th 1403, 1406-1407 [probation reports discussion of victims loss and recommendation constitutes prima facie evidence of loss]; People v. Foster, supra, at p. 946 [statements by victims of value of property constitute prima facie evidence, and burden shifts to defendant to challenge amount]; People v. Baumann (1985) 176 Cal.App.3d 67, 81 [probation reports are permissible sentencing data for restitution]; People v. Hartley (1984) 163 Cal.App.3d 126, 130 [same].) When the probation report includes a discussion of the victims loss and a recommendation on the amount of restitution, the defendant must come forward with contrary information to challenge that amount. [Citation.] (People v. Pinedo, supra, at p. 1406.)

Appellants failure to produce any evidence challenging the reasonableness of the requested restitution defeats his claim. The $500 amount requested in the probation report to repair the damaged fence was plainly reasonable. Appellant had an opportunity to be heard on the issue of restitution at sentencing. But, appellant simply objected to the amount of restitution requested and to the fact that Webb had not specifically request[ed] restitution. Appellant presented no evidence that Webb did not suffer the loss claimed or that the amount claimed was unreasonable.

When considering a trial courts restitution determination, we consider whether it is arbitrary, capricious, or beyond the bounds of reason under all the circumstances. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) On the record before us, there is no basis for finding the $500 restitution order is arbitrary, capricious, or exceeds the bounds of reason. Appellant has therefore failed to demonstrate that the trial court abused its discretion when it relied on the probation report in ordering victim restitution.

Appellant next contends that the trial court erred when it ordered direct restitution because there is no evidence from which a trial court could rationally conclude [appellant] was responsible for the losses ordered paid. As argued by appellant, he was convicted of evading an officer, not vandalism to a fence.

Appellant relies, in part, on In re Maxwell C. (1984) 159 Cal.App.3d 263, in which the court held that the minor, whose offense was receiving stolen property (a car stereo), could not be required to pay restitution to the owner of an automobile for damages to the vehicle caused by the theft of the stereo without evidence that the minor was involved in the theft. (Id. at pp. 265-266.)

Likewise, in People v. Richards (1976) 17 Cal.3d 614, another case on which appellant relies, the defendant was charged with two counts of grand theft against two separate victims, but convicted of only one. The court in Richards found the trial court erred when it ordered the defendant to pay restitution for damages resulting from the grand theft allegation for which he had been acquitted. (Id. at p. 622.)

Here, appellant was convicted of a violation of Vehicle Code section 2800.2, subdivision (a). That section provides: If a person flees or attempts to elude a pursuing police officer in violation of section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison .

The record established that appellant evaded a pursuing police officer, and in the process, drove his car in a willful or wanton disregard for the safety of persons or property. His actions did not end until he crashed into and damaged the fence in question.

We agree with the trial court that appellants criminal conduct directly resulted in the damage to Mr. Webbs fence, and we reject appellants claim to the contrary.

Finally, appellant claims direct restitution is a form of punishment and is therefore subject to the requirements of Cunningham, Blakely, Booker, and Apprendi.

Appellant is incorrect. Although a restitution fine is a form of punishment, victim restitution generally is not. (People v. Harvest (2000) 84 Cal.App.4th 641, 646-650; People v. Young (1995) 38 Cal.App.4th 560, 568-569; see People v. Hanson (2000) 23 Cal.4th 355, 361-362 [restitution fine is punishment].) Only when the effect of a restitution order produces severe consequences or a serious effect will restitution be considered punishment for certain purposes. (People v. Young, supra, at p. 569.)

For instance, in People v. Zito (1992) 8 Cal.App.4th 736, 741, the appellate court held that application of a statutory amendment removing the $10,000 limit on victim restitution would violate the ex post facto prohibition where the defendant would be exposed to a restitution order in excess of $300,000. As explained by our Supreme Court, the punitive effect of the restitution order in Zito was so severe that it was characterized as punishment regardless of its nonpunitive purpose. (People v. McVickers (1992) 4 Cal.4th 81, 87, fn. 1.) Here, the restitution order did not rise to a level of severity such that it constituted punishment. As the restitution order was not a penalty for a crime, it did not fall within the purview of Blakely, supra, 542 U.S. at page 301.

Furthermore, we question, as does respondent, whether appellants claim survived the Legislatures recent reformation of Californias sentencing procedure. In Cunningham, the United States Supreme Court abrogated the California Supreme Courts ruling in People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (2007) __U.S.__ [127 S.Ct. 1210], that the upper term was the statutory maximum. The Cunningham court held that the statutory maximum was the middle term because under Californias sentencing scheme the trial court was required to select the middle term unless it found an aggravating fact that was not an element of the offense found by the jury. (Cunningham, supra, 549 U.S. at pp. __, __ [127 S.Ct. at pp. 868, 871.) In response to Cunningham, effective March 30, 2007, the California Legislature amended Penal Code section 1170, subdivision (b) to make the middle term a discretionary rather than presumptive term. (Stats. 2007, ch. 3,  2; see People v. Sandoval (2007) 41 Cal.4th 825, 845-847.) Here, appellant was sentenced in June of 2007 and, under the new sentencing scheme where there is no longer a presumptive sentence, he would have no Sixth Amendment right to a jury trial on the issue of an appropriate amount of restitution as part of the penalty imposed.

Even in the absence of the emergency legislation, we find that the Cunningham-Apprendi-Blakely-Booker principles do not entitle appellant to a jury determination of victim restitution. The California Constitution requires the payment of restitution and imposes no maximum on the amount that can be ordered. (Cal. Const., art. I,  28, subd. (b).) Under Blakely, only facts that increase[] the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301.) Because the trial courts restitution order did not exceed any constitutional or statutory maximum, appellants jury trial right was not violated. (See, e.g., United States v. Sosebee (6th Cir. 2005) 419 F.3d 451, 461-462 [restitution orders are not affected by Apprendi ruling]; United States v. Wooten (10th Cir. 2004) 377 F.3d 1134, 1144 [same]; United States v. Syme (3d Cir. 2002) 276 F.3d 131, 159 [same].) We reject appellants claim to the contrary.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Levy, J. and Dawson, J.