P. v. Saab
Filed 1/23/13 P. v. Saab CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
WALEED SAAB,
Defendant and Appellant.
B236679
(Los Angeles
County
Super. Ct.
No. KA092815)
APPEAL
from a judgment of the Superior Court
of
County. Douglas W.
Sortino, Judge. Affirmed.
Law
Offices of Christopher L. Hoglin and Christopher L. Hoglin for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, James William
Bilderback II, Supervising Deputy Attorney General, and Sonya Roth, Deputy
Attorney General, for Plaintiff and Respondent.
_________________________________
Defendant
Waleed Saab appeals from the judgment entered following a jury trial in which
he was convicted of felony vandalism and second
degree burglary. Defendant contends
his attorney provided ineffective assistance in conjunction with the
restitution hearing. We affirm.
BACKGROUND
Defendant
operated a restaurant in an historic building in La Verne. The lender foreclosed, and Ghassan Antaki and
his partners bought the property at auction.
They intended to operate a restaurant there. Defendant was extremely upset about the
purchase and refused to cease operations or vacate the premises. In November 2010, Antaki obtained an order
evicting defendant. (All date references
pertain to 2010.) Thereafter, Antaki
watched the property every day.
Beginning on November 12, Antaki observed workers removing ceiling fans,
outdoor heaters, light fixtures, iron gates securing the property, kitchen
equipment, and supplies. Antaki phoned
the police each day, but they did nothing, other than make the workers
reinstall the gates. On the evening of
November 14, Antaki heard loud banging coming from the restaurant and saw
people removing toilets. He called the
police again. Responding officers Travis
Parke and Samuel Gonzalez heard the banging and saw people removing objects
such as toilets, light fixtures, and an air conditioner from the building. Defendant told the officers he owned the
restaurant and was removing his property because he had sold the building.
The
officers testified that when they went into the building, it appeared to have
been demolished from within. Stair rails
had been broken away and lay in a pile of debris. Garden hoses attached to faucets outside the
building had been brought inside to the second floor and left running, flooding
the first floor. Walls and ceilings
throughout the building had holes smashed into them. A wall in the kitchen had been demolished. The drains had been filled with cement. The officers and Antaki took numerous
photographs depicting the damage to the property, which were admitted at
trial. When Officer Gonzalez asked
defendant about the damage, defendant said people had “‘screwed’†him and he
would pay for the damage.
Defendant
testified that Antaki had defrauded him.
After the eviction order, defendant attempted to remove everything he
had put into the restaurant because those items belonged to him. He did not cause, authorize, or know of any
damage other than widening a door in the kitchen to remove equipment and damage
to the stair rail from removal of a desk from his second-story office.
The jury
convicted defendant of felony vandalism and second degree burglary.
Antaki
sought restitution for amounts his insurer, Farmers Insurance, had paid. He expressly waived any restitution for
additional expenses he had incurred that were not covered by insurance. At a contested restitution hearing, Antaki
testified that he contacted Farmers regarding the vandalism damage. Farmers sent two claims adjusters. Antaki then hired Alhilo to make the repairs
and submitted claims for the cost of the repairs to Farmers. He also submitted a claim for loss of rental
income of $10,000 per month, which he calculated using a base rent on the low
end of the scale for comparable rents in the area. At the time of the hearing, Antaki had
actually leased the property for $11,940 per month.
Gary
Sherman, an executive general adjuster for Farmers Insurance, testified that he
was responsible for commercial first party claims exceeding $100,000. He was familiar with Antaki’s claim and with
the way Farmers processed claims and kept records. He reviewed the exhibits, which were part of
Farmers’s file regarding Antaki’s claim.
Farmers sent adjuster Ryan Williams to view the damage to the
building. Williams prepared a 53-page
written preliminary repair estimate, which was admitted in evidence. Responsibility for the claim was then
transferred to Timothy Bower, who prepared an estimate letter, followed by two
letters stating revised, increased estimates, the last of which was $95,520 for
lost business income and $405,182.89 for repairs to the building, excluding
long term damage, such as dry rot, and most of the cost of upgrades required to
comply with building codes. The revised
estimate letters were also admitted in evidence.
Tony
Alhilo, the contractor hired by Antaki to repair the damage, testified in
detail on cross-examination by defense counsel regarding the nature, necessity,
and cost of particular repairs he had made and was continuing to make pursuant
to his written contract with Antaki, which was also admitted in evidence. The questioned repair expenses included over
$10,000 in permit fees; $2,900 to replace rotted exterior wood fascia, eaves,
and window frames; more than $4,475 for a fire suppression system; $29,450 to
replace the roof, which had holes where air conditioning units had been
removed; $1,450 for repair of gutters that had been damaged by ripping off
downspouts; $1,650 to reinstall missing railings and paint all railings to
match; $7,800 to replace the canvas patio cover, which had been cut away;
$2,750 to replace the missing pump system for the waterfalls on the patio;
$1,400 for new exterior doors to the basement, kitchen, and exterior storage
area; $1,450 for new interior doors; $2,900 to replace tile on the exterior
steps and landing, which was damaged by tearing out railings and could not be
matched; $1,200 for missing exterior low-voltage lighting; $25,750 to replace
the three missing air conditioning units and upgrade ducts to code; $7,850 to
replace an electrical panel that had been stripped; $10,040 to replace missing
interior light fixtures; $1,625 to replace missing exterior post lights;
$12,000 to replace missing and water-damaged downstairs flooring; $16,000 to
replace water-damaged flooring on the second and third stories; and $5,500 to
repair broken windows, about half of which Alhilo attributed to vandalism. In addition, the underground plumbing
replacement cost about $7,500. Alhilo
had been paid about $280,000 and was owed between $20,000 and $25,000 on his
original contract, not including change orders, and Antaki had paid some
vendors and subcontractors directly.
Defendant
testified that the building was smaller than Antaki claimed in estimating its
rental value, there had been only two air conditioners and one of those was
broken, and the property was in a very dilapidated state at the time of
foreclosure because he had not been able to afford repairs. Defendant stipulated to restitution in the
amount of $10,000 for loss of personal property.
The trial
court continued the restitution hearing for 19 days to give defendant an
opportunity to present his own experts, a “contractor expert†and one or more
appraisers that counsel said he had retained.
Defense counsel asked the court to order Antaki to allow the defense
experts to inspect the building. The
court declined to do so, stating that the damages defendant caused were
well-documented in the exhibits admitted at trial and those introduced at the
restitution hearing, and inspection of the repaired building would serve no
purpose. When the hearing resumed,
defendant did not call any expert witnesses.
After
deducting the cost of certain repairs it concluded were not necessitated by
defendant’s conduct, the court ordered defendant to pay $506,952.89 to Antaki’s
business, Alanda Properties. The court
sentenced defendant to the low term of 16 months in prison for burglary and
stayed the sentence on the vandalism count pursuant to Penal Code section 654.
DISCUSSION
Defendant contends that his
attorney rendered ineffective assistance in relation to the restitution hearing
by (1) failing to call “an expert to show the true extent of damages caused†or
“have an expert or appraiser review the estimates and invoices provided by the
Farmers Insurance expert and compare that to the actual worked [
“object on hearsay grounds to testimony provided by Mr. Sherman . . . about
statements clearly made by Mr. Bower.â€
A claim
that counsel was ineffective requires a showing, by a preponderance of the
evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, the
defendant would have obtained a more favorable result. (In re
Jones (1996) 13 Cal.4th 552, 561.)
The defendant must overcome presumptions that counsel was effective and
that the challenged action might be considered sound trial strategy. (Ibid.) In order to prevail on an ineffective assistance of counsel
claim on appeal, the record must affirmatively disclose the lack of a rational
tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th
385, 403.)
Defendant
has not satisfied his burden with respect to either alleged instance of
ineffective assistance. Defense counsel
told the court he had retained experts:
a contractor and one or more appraisers.
As far as the record reveals, defendant’s assertion that these experts
did not “review the estimates and invoices provided by the Farmers Insurance
expert and compare that to the actual worked [sic] performed†is based only on speculation. The experts may have performed such a review
and their opinions may not have benefited defendant. Similarly, the opinions rendered by the
defense experts may not have been favorable to defendant. Thus, defendant has not shown objectively
unreasonable performance by counsel. In
addition, because the substance of the experts’ opinions is not in the
appellate record, defendant cannot demonstrate prejudice.
With
respect to his claim regarding counsel’s failure to object to Sherman’s
testimony, defendant fails to note that counsel objected on hearsay and
foundational grounds when the prosecutor asked Sherman
whether Bower considered documents supplied by Antaki and Antaki’s contractor
in determining replacement costs. The
court overruled the objection, saying, “Given the broad discretion the court
has to admit evidence at a restitution hearing, reliable hearsay, I believe, is
included and it’s appropriate. This
testimony is appropriate under those circumstances.†Accordingly, it is not reasonably probable
that defendant would have obtained a more favorable result if counsel had
objected more frequently because the trial court would not have excluded Sherman’s
testimony. Indeed, it appears the trial
court acted within its discretion in considering it. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048; People v. Cain
(2000) 82 Cal.App.4th 81, 87.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO,
P. J.
We
concur:
CHANEY, J.
JOHNSON, J.
