P. v. Perry
Filed 7/24/12 P. v. Perry CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL JAMES PERRY,
Defendant and Appellant.
D060378
(Super.
Ct. Nos. SCD223402,
SCD230842)
APPEAL from
a judgment of the Superior Court
of
County, Charles G. Rogers, Judge. Judgment affirmed as modified and remanded
with directions.
This appeal
involves two criminal cases. On February 14, 2011, in San
Diego County Superior Court case No. SCD223402,
Michael James Perry pleaded guilty to two felony assault counts and admitted he
used a deadly weapon in the commission of both offenses. Pertinent to this appeal is (1) Perry's plea
of guilty to count 3, which charged him with assaulting the victim with a
deadly weapon or by means of force likely to produce great bodily injury in
violation of Penal Code
name="_ftnref1" title="">[1] section
245, subdivision (a)(1) (hereafter § 245(a)(1)); and (2) his admission
that he personally used a deadly or dangerous weapon (a drum) in the commission
of this aggravated assault within the
meaning of former section 12022, subdivision (b)(1) (hereafter
§ 12022(b)(1)) and section 1192.7, subdivision (c)(23). That criminal case arose from Perry's act of
injuring the female victim by hitting her in the back of the head with a small
drum.
On that
same date, Perry pleaded guilty in the second case─No. SCD230842─to
four counts of making a criminal threat in violation of section 422. That case arose from Perry's four acts of
threatening his public defender with death or great bodily injury (counts 1, 3,
6, & 8), and his act of throwing and destroying a laptop computer the court
had provided to him to assist him in the courtroom due to his hearing
impairment (count 5: vandalism over $400
in violation of § 594, subds. (a) & (b)(1)). The court dismissed count 5.
Perry
agreed to a Harvey
in both cases. On July 14, 2011, the court sentenced Perry in both
cases to a total prison term of 12 years eight months, including a consecutive
one-year enhancement in case No. SCD223402 for the personal use of a deadly or
dangerous weapon (§ 12022(b)(1)).
On July 22
of that year, following a restitution hearing, the court ordered Perry to pay
restitution in the amount of $733 (one-half the replacement cost of $1,466) for
the loss of the computer and amended the judgment accordingly.
Perry
appeals, contending (1) the one-year count 3 weapon use enhancement in case No.
SCD223402 must be stricken from the judgment because use of the weapon was an
element of his count 3 assault conviction, and (2) the $733 restitution award
in case No. SCD230842 for the destruction of the laptop computer must be
reversed, and the matter remanded for further consideration, because the court
abused its discretion by not using a rational method of considering depreciation
in determining the restitution amount.
We modify
the judgment by striking the one-year weapon use enhancement in case No.
SCD223402 and affirm the judgment as so modified.
FACTUAL
BACKGROUND
As the
remaining facts underlying the two cases are not pertinent to this appeal, we
need not summarize them.
DISCUSSION
I
Perry
contends the count 3 consecutive one-year enhancement in case No. SCD223402 for
his use of a weapon (§ 12022(b)(1)) must be stricken from the judgment
because use of the weapon was an element of his aggravated assault conviction
(§ 245(a)(1)). The Attorney General
concedes that Perry is correct. We
conclude the enhancement must be stricken.
Section
245(a)(1) provides: "Any person who commits an
assault upon the person of another with a deadly
weapon or instrument other than a firearm shall be punished by imprisonment
in the state prison for two, three, or four years, or in a county jail for not
exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000),
or by both the fine and imprisonment."
(Italics added.)
Section
12022(b)(1) provides: "Any person
who personally uses a deadly or dangerous weapon in the commission of a felony
or attempted felony shall be punished by an additional and consecutive term of
imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that
offense." (Italics added.)
"[T]he
conduct of the accused, rather than the prosecution's pleading, determines
whether use of a deadly weapon is an element of a section 245[(a)(1)]
conviction." (People v. McGee (1993) 15 Cal.App.4th 107, 110.)
Here,
Perry's hitting the victim in the head with a drum constituted the aggravated
assault of which he was convicted.
Therefore, his use of the drum as a "deadly weapon or instrument other than a
firearm" (§ 245(a)(1)) in committing the aggravated assault was an element
of that offense, and the weapon use enhancement imposed under section
12022(b)(1) must be stricken.
(§ 12022(b)(1); People v.
McGee, supra, 15 Cal.App.4th at
p. 110.)
II
Perry also
contends the $733 restitution award in case No. SCD230842 for his destruction
of the laptop computer must be reversed, and the matter remanded for further
consideration, because the court abused its discretion by not using a rational
method of considering depreciation in determining the restitution amount. We reject this contention.
A.
As a result
of his hearing disability, Perry was provided a laptop computer and a second
reporter during the trial in case No. SCD230842 to allow him to view the
transcription of the oral proceedings in real time. Perry destroyed the computer during the trial
when he threw it in the courtroom.
name="_ftnref3" title="">[3] The probation officer reported that the
replacement cost for the computer was $1,345.
At the
evidentiary restitution hearing, Lynda Abas, an information technology manager
for the Superior Court of San Diego County, testified that the cost to purchase
the computer in 2001 was $2,427.39, and the cost of the replacement computer
was $1,466.15. She testified the
destroyed computer was no longer manufactured, and the replacement computer was
slimmer and faster, and had more memory and a built-in wireless
capability.
Perry told
the court, "I know I have a responsibility to pay for the computer. I knew I would have to pay for it when I
threw it, but it doesn't seem right to pay $1,500 for a computer that's 10
years old. I don't see how it could be
valued at $1,500 10 years later."
1. Ruling
The court
stated it was required "to use a rational method to set restitution"
and acknowledged the resale value might be very low. Noting that the new computer "does more
than the original computer did," the court stated that "the court is
entitled to have a computer that would be sure enough to do whatever the
original one did." The court then
took the replacement cost of $1,466, cut it in half, and ordered Perry to pay
the resulting amount─$733─in restitution for the loss of the
original computer.
B.
Section 1202.4, subdivision (f)(3)(A) provides:
"(f) . . . [I]n every case in
which a victim has suffered economic loss as a result of the defendant's
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.
[¶] . . . [¶](3) To the extent possible, the restitution
order . . . 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 defendant's criminal conduct, including, but not
limited to, all of the following: [¶]
(A) Full or partial payment for the value of . . . damaged
property. The value of . . . damaged property shall be the
replacement cost of like property, or the actual cost of repairing the
property when repair is possible."
(Italics added.)
A crime
victim's right to restitution must be broadly and liberally construed. (People
v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) A trial court has
broad discretion in setting the amount of restitution. (People
v. Stanley (July 9, 2012) __ Cal.4th __ (2012 Cal. Lexis 6360);
in determining the amount of restitution as long as it is reasonably calculated
to make the victim whole. (
In
"[a]t a victim restitution hearing, a prima facie case for restitution is
made by the People based in part on a victim's testimony on, or other claim or
statement of, the amount of his or her economic loss." (Millard,
supra, 175 Cal.App.4th at p.
26.) Once the People have made a prima
facie showing of the victim's loss, the burden shifts to the defendant to
demonstrate the amount of the loss is other than that claimed by the victim. (Ibid.)
"There
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." (
1114, 1121.)
1. Standard of
review
A
restitution order is reviewed for abuse of discretion, and no abuse of
discretion will be found by the reviewing court when there is a factual and
rational basis for the amount of restitution ordered by the trial court. (Millard,
supra, 175 Cal.App.4th at p. 26.)
C.
In ordering
Perry to pay restitution in the amount of $733 for the loss of the laptop
computer he destroyed in the courtroom, the court did not use the original
purchase price of the 10-year-old computer ($2,427). Instead, it used the cost of the replacement
computer─$1,466─and ordered Perry to pay half that
amount─$733─in victim restitution, thereby acknowledging
depreciation of the original computer as a factor in determining the
restitution amount. A court may
"rationally use a cost basis for determining the amount of restitution for
most items and [is] not required to use a strict fair market value standard at
the time [the victim's loss occurred]."
(In re Brian S. (1982) 130
Cal.App.3d 523, 532.)
Here, the
court's method of calculating the appropriate value of a replacement laptop
computer was rationally based on both the actual cost of the replacement
computer and depreciation of the original computer before Perry destroyed it. Thus, the court did not abuse its
discretion. (See Millard, supra, 175
Cal.App.4th at p. 26.)
Perry
complains that "the court did not avail itself of other easily available
sources online as to how depreciated computers─certainly not a rare
commodity─may be valued."
However, the court was not required to limit the amount of restitution
to the exact amount of the loss caused by Perry's willful destruction of the
computer. (People v. Carbajal, supra,
10 Cal.4th at p. 1121.) In any event, at
the restitution hearing the People met their burden of presenting a prima facie
showing of the cost to replace the computer, and Perry's speculative remarks to
the court failed to meet his burden of showing the amount of the loss was some
lesser amount. (See Millard, supra, 175
Cal.App.4th at p. 26.)
DISPOSITION
The count 3
section 12022(b)(1) enhancement in case No. SCD223402 is stricken. As modified, the judgment is affirmed. The trial court is directed to prepare a
corrected abstract of judgment reflecting the striking of that enhancement and
to
forward the corrected
abstract of judgment to the Department of Corrections and Rehabilitation.
NARES,
J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1]
Undesignated statutory references
will be to the Penal Code.
waiver permits a sentencing court to consider counts that were dismissed under
a plea bargain and were transactionally related to the admitted offense. (Id.
at pp. 758-759; see also 3 Witkin & Epstein, Cal. Criminal Law (3d ed.
2000) Punishment, § 274, p. 361.)
