Opinion
C052463
5-11-2007
THE PEOPLE, Plaintiff and Respondent, v. CAMERON JETTON, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant Cameron Jetton was convicted by jury of unlawfully driving a vehicle without the owners consent (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d, subd. (a)), and resisting arrest (Pen. Code, § 148, subd. (a)(1)). The trial court found defendant had twice before been convicted of violating Vehicle Code section 10851. (Pen. Code, § 666.5, subd. (a).) Defendant was sentenced to three years in state prison and was ordered to pay $9,292.13 in victim restitution.
This appeal, which concerns the victim restitution award, arose from the theft of a Yamaha motorcycle. Six days after the victim reported it stolen, law enforcement officers saw defendant riding the motorcycle. Defendant was stopped but fled on foot. He was caught after a short pursuit. The motorcycle had a dent in the gas tank, the rear tire was bald, the seat was torn, the ignition was damaged, and a Honda car key was being used to start the vehicle. Defendant said the motorcycle had been stolen before and he had to use the Honda key "to start the bike now."
According to the victim, his previously "immaculate" motorcycle now had dents and a broken and missing ignition, the rear seat was torn, the rear tire "was burned out flat," the rims were scratched, a sticker was put on the windscreen, and someone had scratched off the vehicle identification number. His insurance company took the motorcycle and "totaled it."
The probation office reported that the victim sought $9,292.13 in restitution, comprised of (1) $8,094.75 and $ 127.38 that State Farm Insurance and the victim paid to the victims credit union to pay off the loan for the motorcycle, (2) the victims $500 insurance deductible, (3) $450 in towing and impound fees, and (4) $120 for the day of work the victim missed.
Defendant contends the trial court erred in awarding $9,292.13 in victim restitution. In his view, the victim did not suffer any economic loss as the result of defendants crimes, and there is no substantial evidence to support the amount awarded. We shall affirm the judgment.
DISCUSSION
I
The trial court awarded victim restitution pursuant to Penal Code section 1202.4, which states in pertinent part: "(a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime. [¶] . . . [¶] (f) [I]n every case in which a victim has suffered economic loss as a result of the defendants 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. . . ."
The probation report and the victims testimony provide substantial evidence that the victim suffered a $9,292.13 loss, absent contrary evidence from defendant challenging the amount. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.)
More problematic is defendants claim that he could not be ordered to pay full victim restitution because there is no evidence that he caused the damages to the motorcycle.
"California courts have long interpreted the trial courts discretion to encompass the ordering of restitution as a condition of probation even when the loss was not necessarily caused by the criminal conduct underlying the conviction. Under certain circumstances, restitution has been found proper where the loss was caused by related conduct not resulting in a conviction [citation], by conduct underlying dismissed and uncharged counts [citation], and by conduct resulting in an acquittal [citation]." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) However, when the court imposes a prison sentence following trial, it does not have the same discretion to require the defendant to pay for losses caused by conduct for which he or she was not convicted. Penal Code section 1202.4 limits victim restitution to losses caused by the criminal conduct for which the defendant was convicted. (People v. Lai (2006) 138 Cal.App.4th 1227, 1247-1249.)
Defendant does not dispute that the victim is entitled to full restitution for his losses even if they were reimbursed in full, or in part, by the victims insurance. (People v. Kleinman (2004) 123 Cal.App.4th 1476, 1479, fn. 4.)
Defendant asserts that he is not responsible for any economic loss associated with the motorcycle theft as there is no evidence that he stole it, only that he was driving it several days after it was stolen. Indeed, he was not convicted of taking the motorcycle in violation of section 10851, subdivision (a), only of driving it, which is why his conviction for receiving stolen property is legally permissible. (People v. Strong (1994) 30 Cal.App.4th 366, 370, 373-374 ["a defendant cannot be convicted of stealing and receiving the same property"].)
The complaint charged that defendant "did unlawfully drive and take" the vehicle, the instructions stated the prosecution had to prove that "defendant took or drove" the vehicle, but the verdict form refers only to "unlawfully driv[ing]" the vehicle.
We agree that the victim restitution award cannot be based on the theory that defendant stole the motorcycle, since he was not convicted of vehicle theft. And because the motorcycle was returned to the victim, it ordinarily would not represent a loss suffered by the victim as the result of defendants conviction for receiving stolen property. (People v. Rivera (1989) 212 Cal.App.3d 1153, 1162.) However, the motorcycle was returned in a damaged state, which resulted in it being taken and "totaled" by the victims insurance company. In other words, the victim did not receive his motorcycle back in the same condition, and he no longer has the motorcycle. Thus, defendant is responsible either (1) to pay for any damage he caused to the motorcycle, or (2) to pay for the replacement cost of the motorcycle if, while it was in his possession, he caused the damage that led to the insurance companys decision to total the motorcycle.
Defendant contends that there was no evidence presented at trial demonstrating that he caused any of the damage to the motorcycle, rather than simply having purchased it in a damaged condition; the fact that the ignition was broken simply indicated he knew the motorcycle was stolen and supports his conviction for receiving stolen property. In defendants view, even if he was responsible for some portion of the damage to the motorcycle, there is no substantial evidence that he caused damage in an amount equivalent to the award by the court.
Defendant correctly observes there was no direct evidence at trial concerning who caused the damage to the motorcycle. However, the prosecution was not required to prove this as an element of any of the charged offenses. Consequently, there was no reason for the prosecutor to present evidence on this issue at trial. The probation report alerted defendant that the victim sought restitution for the motorcycle, and defendant had the opportunity to explain that he did not cause all the damage or that he obtained the vehicle in an already damaged condition. Rather than doing so, he simply indicated that he purchased the motorcycle about a week before he was arrested; he said nothing about his alleged lack of responsibility for the condition of the motorcycle.
Accordingly, it was a reasonable inference that defendant caused damage to the motorcycle during the six days between the theft of the previously "immaculate" motorcycle and defendants apprehension for unlawfully driving it, no longer in pristine condition. Because defendants claim of error concerning the amount of damage that he caused is fact-specific, he forfeited the issue when he failed to object to the requested restitution at the sentencing hearing. (People v. Smith (2001) 24 Cal.4th 849, 852 [sentencing error is forfeited by failure to object unless it involves a pure question of law that is correctable without referring to factual findings in the record or remanding for further findings].)
Defendant asserts that if trial counsels failure to object to either the amount of restitution or to the appropriateness of holding defendant liable for restitution results in forfeiture of his contention, then he received prejudicially ineffective assistance of counsel.
The California Supreme Court has "repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding." (People v. Michaels (2002) 28 Cal.4th 486, 526.) If the record fails to shed any light on why counsel acted or failed to act in the manner challenged, a claim of ineffective assistance of counsel must be rejected on appeal "`unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Wilson (1992) 3 Cal.4th 926, 936, citing People v. Pope (1979) 23 Cal.3d 412, 426.) Unless the record affirmatively discloses that counsel had no tactical purpose for his act or omission, "the conviction will be affirmed and the defendant relegated to habeas corpus proceedings at which evidence dehors the record may be taken to determine the basis, if any, for counsels conduct or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581-582; accord, People v. Hinds (2003) 108 Cal.App.4th 897, 901.)
Because the record does not show that trial counsel lacked a tactical reason for not objecting to the amount of restitution, and because we are unable to say that there could be no satisfactory explanation for not doing so, we must affirm the judgment and leave defendant to pursue his claim of error via a petition for writ of habeas corpus.
DISPOSITION
The judgment is affirmed.
We concur:
SIMS, J.
CANTIL-SAKAUYE, J.