Opinion
A147806
04-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER ROBERT YOUSHOCK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC070984)
After a jury found him guilty of numerous terror-related crimes on school property, including attempted murder, defendant Alexander Youshock entered into a negotiated plea agreement that included a stipulation that he was legally insane when he committed count three, exploding a destructive device with intent to commit murder (Former Pen. Code, § 12308). The trial court thereafter imposed, and then stayed, a total prison term of 24 years 8 months, after which defendant was committed to Napa State Hospital for an indeterminate term.
Former Penal Code section 12308 was repealed and reenacted as section 18745. (Stats. 2010, ch. 711, § 4, No. 10 West's Cal. Legis. Service, p. 4138 [repealed]; Stats. 2010, ch. 711, § 6, No. 10 West's Cal. Legis. Service, p. 4173 [reenacted].)
Unless otherwise stated, all statutory citations herein are to the Penal Code.
Several years later, the parties stipulated that defendant's sanity had been restored, with the result that the stay of his determinate term of 24 years 8 months was lifted, and he was sent to prison. On appeal, defendant contends the trial court erred in two ways following these events—to wit, by miscalculating his custody credits and issuing a legally flawed and factually unsupported restitution award to the victim of his crimes, the San Mateo County Unified School District.
For reasons discussed below, we reverse the trial court's custody credit determination and remand the matter for reconsideration in light of the opinions set forth herein, while in all other regards we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 2010, defendant was charged with two counts of attempted murder (§§ 187, subd. (a), 664); one count of exploding or igniting a destructive device or explosive with intent to commit murder (former § 12308); one count of exploding or igniting a destructive device or explosive in a public school (§ 11413, subd. (a)); one count of possessing a destructive device or explosive in or near a school (§ 12303.2); and two counts of unlawfully possessing a concealed dirk or dagger and explosive device, to wit, a pipe bomb (former § 12020, subd. (a)). It was further alleged that defendant committed the attempted murder counts with premeditation and deliberation, when he was at least 14 years old, and by use of a deadly or dangerous weapon. As to the charge of exploding or igniting a destructive device or explosive with intent to commit murder, it was further alleged that defendant was at least 14 years old at the time.
Former section 12303.2 was repealed and reenacted as section 18715. (Stats. 2010, ch. 711, § 4, No. 10 West's Cal. Legis. Service, p. 4138 [repealed]; Stats. 2010, ch. 711, § 6, No. 10 West's Cal. Legis. Service, p. 4172 [reenacted].)
In March 2011, a jury found defendant guilty of two counts of unlawfully possessing a concealed dirk or dagger and explosive device; one count of attempted murder (enhanced because he was at least 14 years old and acted with premeditation and deliberation); one count of exploding or igniting a destructive device or explosive with intent to commit murder (enhanced because he was at least 14 years old); one count of exploding or igniting a destructive device or explosive in a public school; and one count of possessing a destructive device or explosive in or near a school. The trial court subsequently declared a mistrial after finding the jury "hopelessly deadlocked" on the remaining attempted murder count.
On April 8, 2011, a trial was held on the issue of defendant's sanity, after which the trial court again declared a mistrial because the jury was "hopelessly deadlocked."
On May 12, 2011, an amended indictment was filed, adding to the original indictment six more counts of possessing a destructive device or explosive in or near a school. The next day, the parties entered into a negotiated disposition, pursuant to which it was stipulated that defendant was insane when he exploded or ignited a destructive device or explosive with intent to commit murder. In addition, on the prosecutor's motion, the allegations of premeditation and deliberation were dismissed. In return, defendant entered a no contest plea to the unresolved attempted murder count and admitted he was, during its commission, at least 14 years old and used a deadly or dangerous weapon. Defendant also pleaded no contest to the six new counts in the amended indictment and withdrew his plea of not guilty by reason of insanity as to all but the one stipulated count.
The trial court thereafter imposed, and then stayed, a total prison term of 24 years 8 months, before defendant, in accordance with the negotiated disposition, was remanded to the custody of the Napa State Hospital for an indeterminate term lasting so long as he remained insane.
Years later, on March 7, 2016, the parties stipulated to the restoration of defendant's sanity, and the trial court executed the previously stayed 24-year, eight-month prison term.
On March 14, 2016, defendant timely appealed the judgment.
DISCUSSION
Defendant argues on appeal that the trial court erred, first, by failing to credit him with custody credits for the period of time from August 24, 2009, the date he was arrested, to March 14, 2016, the date his prison term began. This time frame involves two distinct phases: (1) the period of time he was confined to Napa State Hospital (hereinafter, hospital) by reason of his insanity, and (2) the period of time between the dates he changed his plea and he arrived at the hospital.
In addition, defendant argues the trial court erred in awarding victim restitution to the San Mateo County Unified School District (hereinafter, school district) in the amount of $122,161 because (1) the school district was not a direct victim of his crimes, and (2) there was no evidence supporting the amount awarded to the school district. We address each argument in turn below.
I. Sentencing Credits.
As an initial matter, the People concede that defendant is entitled to receive custody credits for the period of time from May 13, 2011, when he changed his plea, to September 21, 2011, when he arrived at the hospital after having been in penal custody. According to the record, the trial court awarded defendant 628 days of custody credits, as well as the corresponding 93 days of conduct credits, which was based on credits running until the date defendant changed his plea, rather than the date he actually arrived at the hospital from penal custody. The People, however, agree with defendant that he is entitled to a total of 758 days of custody credits and 113 days of conduct credits, which covers the entire time he spent "in penal custody from August 24, 2009 to September 21, 2011 . . . ." We agree, and thus order the judgment modified to reflect these additional days.
On the other hand, the People do not agree defendant is entitled to credit for the days he spent at the hospital rather than in penal custody. Nor did the trial court. At the sentencing hearing following restoration of defendant's sanity, the trial court denied his request to receive custody credit for the period from September 21, 2011, when he was delivered to the hospital, to March 14, 2016, when he began his prison term, reasoning "there is no law mandating credits, and, therefore, no credits on the indeterminate term are given."
On appeal, the parties disagree with the trial court's basic premise—that there is no law mandating that he receive credits in this case. Defendant, on the one hand, argues that he, like all defendants, is entitled to credits for the duration of his hospital confinement unless he knowingly and voluntarily waived his right to them. According to defendant, there was no knowing and voluntary waiver in his case. Indeed, he notes, defense counsel warned the trial court at the sentencing hearing after his sanity was restored that "it [to wit, the credit issue] had not been addressed at the time of the initial sentencing—that under due process and equal protection argument[s] as well that [defendant] should be entitled because he does have a sentence that was stayed prior to his commitment that he should receive credits for the time he was at [the hospital]."
The People, in turn, argue here, as below, that defendant is bound by his negotiated plea agreement, the "obvious import" of which was that, "should the defendant quickly be restored to sanity, he would nonetheless be punished for his conduct by a determinate term in CDCR [California Department of Corrections and Rehabilitation]. This type of agreement accomplishes two things: (1) It is a deterrent to malingering because the term of imprisonment is inevitable; and (2) it ensures that the defendant faces a fixed term of punishment, which cannot be served in a hospital instead of a penal institution."
The following legal principles apply. "In all felony . . . convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , hospital, prison . . . , or similar residential institution, all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment . . . ." (§ 2900.5, subd. (a); see also In re Banks (1979) 88 Cal.App.3d 864, 870 ["It is undisputed that if petitioner were to recover his competency and to be convicted of the charged offense, any sentence he received would have to be reduced by allowing credit both for the precommitment time spent in jail and for the commitment period in a state hospital. (Pen. Code, § 2900.5; [citations].)"].)
As the parties recognize, a defendant is entitled to credit pursuant to section 2900.5, subdivision (a), only if the conduct underlying his or her conviction was the sole reason for his or her loss of liberty. (§ 2900.5, subd. (b).)
"[A] defendant may validly waive custody credits pursuant to Penal Code section 2900.5 as a condition of probation." (People v. Salazar (1994) 29 Cal.App.4th 1550, 1553.) Indeed, "it is well settled that a defendant may waive custody credits as a condition of probation, or in exchange for other sentencing considerations. [Citations.] The waiver, however, must be ' "knowing and intelligent" ' in the sense that it was made with 'awareness of its consequences.' [Citation.]" (Ibid.; accord, People v. Johnson (2002) 28 Cal.4th 1050, 1054-1055 ["a defendant may expressly waive entitlement to section 2900.5 credits against an ultimate jail or prison sentence for past or future days in custody" (italics added)].) An "awareness of its consequences," in turn, means "an understanding of the impact of that waiver on the amount of time a defendant may be incarcerated." (People v. Ambrose (1992) 7 Cal.App.4th 1917, 1922.)
" 'To determine whether a waiver is knowing and intelligent, the inquiry should begin and end with deciding whether the defendant understood he was giving up custody credits to which he was otherwise entitled.' " (People v. Jeffrey (2004) 33 Cal.4th 312, 320.)
Having reviewed the record in this case, we cannot make this necessary decision that defendant understood he was forfeiting custody credits for his time spent confined to the hospital. (People v. Jeffrey, supra, 33 Cal.4th at p. 320.) The People correctly point to the trial court's statements in the record that defendant's indeterminate sentence would be "stayed while [defendant is] in Napa State Hospital" and that, "if, and only if, sanity is ever restored" would he "face that sentence of 24 years 8 months in the [CDCR]." However, the People's reliance on these statements reflects an incomplete and out-of-context view of the record.
For example, defendant's "Addendum: Waiver of Rights" was filed on May 13, 2011. In this document, defendant expressly agreed "to be sentenced on Counts 2, 4, 5, 6 and 7 of the Amended Indictment having been found guilty on those charges following a jury trial on those counts, with said sentence to be stayed pending any restoration to sanity proceedings on Count 3." There is nothing in this waiver, however, regarding defendant's right to—much less giving up—of section 2100.5 credits.
Further, at the May 13, 2011 hearing, the trial court, before sentencing defendant to the determinate 24-year, 8-month term, indicated that the issue of custody credits had not been settled by the plea agreement: "If and only if for any purpose in the future the remaining sentence which I am going to issue and then stay, if that is ever executed, there will be [a] need to recalculate all the credits." (Italics added.) Similarly, later on at this hearing, the trial court reiterated the potential need to recalculate defendant's credits: "The [aforementioned] determinate sentence to the [CDCR] is stayed until such time as [defendant's] sanity is restored with respect to count 3. [Defendant] has 628 days actual credits to date, however this will be recalculated should his sentence to state prison ever be executed." (Italics added.)
Moreover, the trial court's findings and order for commitment, filed May 16, 2011, can likewise be read as an indication that further proceedings were anticipated should defendant's sanity be restored: "Should [defendant] ever be restored to sanity with respect to Count 3 in this case, it is further ordered that he shall then be returned to the San Mateo County Superior Court for further proceedings which include[] execution of the previously suspended sentence on Counts 1-2 and Counts 4-13 of the Amended Indictment filed May 13, 2011."
Thus, because, unlike the defendant in the People's case, People v. Jeffrey, nothing in this record demonstrates that, at the time our defendant entered into the negotiated plea agreement, he knowingly or intelligently waived his right to earn credits for the days from September 21, 2011, to March 14, 2016, when he was confined to the hospital, we conclude the court's denial of section 2900.5 credits must be reversed and the matter remanded to permit a recalculation of his credits.
The People also direct us to case law explaining that trial courts should—but are not duty bound to—specifically advise a defendant on the record regarding the scope of a waiver of section 2900.5 credits. However, this same case law makes clear there must be in the record some unambiguous indication of the defendant's awareness that he or she was waiving his or her statutory right to credits, which, here, we do not have: "Appellant relies on cases concerning the advice and waivers that must be made on the record before accepting a guilty plea or admission of an enhancement allegation. [Citations.] These cases have imposed upon the trial courts the duty to expressly advise the defendant of the constitutional rights waived, and the consequences of the plea. None of these cases extend such an obligation to the trial court when obtaining a waiver of statutory rights pursuant to . . . section 2900.5. [¶] No doubt the better course is to specifically advise the defendant on the record concerning the scope of a waiver of credits, as the court did in People v. Ambrose, supra, 7 Cal.App.4th 1917. In Ambrose, the court required the defendant to waive any right to custody credit for the time spent in a drug rehabilitation program as a condition of probation. The court specifically warned the defendant that if he violated probation again he would go to state prison and would not receive any credits for the time he had been in custody. (Id. at p. 1923.) If the trial court takes the time to create such an unequivocal record, the scope of the waiver is explicit, and not vulnerable to later retraction, when the defendant is faced with state prison. [¶] Nevertheless, having carefully reviewed the entire record, we are confident that appellant understood at the April 22 hearing that he was waiving his prior custody credits, as the court then said, 'for all time and for all purposes.' " (People v. Salazar, supra, 29 Cal.App.4th at p. 1550, (fn. omitted, italics added).)
II. Victim Restitution.
Finally, defendant contends the trial court erred in ordering him to pay restitution in the total amount of $122,161 to compensate the victim for repair and salary costs ($24,433) and school closure-related costs ($97,728) because (1) the school district was not a "direct victim" of his crimes, and (2) there was no evidence in the record to support the amount awarded. Moreover, he contends that, should we find his restitution claim forfeited (as the People contend), we should further find that he received ineffective assistance of counsel. The following legal principles apply.
"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 seek and secure restitution from the persons convicted of the crimes causing the losses they suffer." (Cal. Const., art. I, § 28, subd. (b)(13)(A).) "Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." (Cal. Const., art. I, § 28, subd. (b)(13)(B).) Thus, "in 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." (§ 1202.4, subd. (f).) Further, restitution under this provision "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, the victim's lost wages or profits and relocation expenses incurred to move away from the defendant. (§ 1202.4, subd. (f)(3).)
"A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. ' "[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt." ' [Citation.]" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.)
As an initial matter, with respect to defendant's opening-brief argument that the school district does not qualify as a "direct victim" under California law for purposes of restitution, the People direct us to section 11413 and former section 12303.2, both of which defendant was convicted of violating. Subdivision (a) of section 11413 makes it a crime for "[a]ny person [to] explode[], ignite[], or attempt[] to explode or ignite any destructive device or any explosive . . . in or about any of the places listed in subdivision (b), for the purpose of terrorizing another or in reckless disregard of terrorizing another . . . ." Subdivision (b), in turn, delineates "[a]ny public or private school providing instruction in kindergarten or grades 1 to 12, inclusive" as coming within the scope of the statute. (§ 11413, subd. (b)(10).) Similarly, former section 12303.2 (now codified in section 18715) criminalized "recklessly or maliciously . . . possess[ing] any destructive device or any explosive in any of the following places . . . : [¶] (2) In or near any . . . school . . . ." (Former § 12303.2, subd. (a).)
According to the People, because these statutes are, by their express language, intended to protect school property from damage caused by a defendant's use of a destructive or explosive device, the school district was indeed a direct victim of defendant's numerous violations of these statutes. In his reply brief, defendant offers no rebuttal. Nor can we envision one. Based upon the reasoning provided by the People and set forth above, we reject defendant's claim that the school district was not a direct victim of his crimes and, thus, not entitled to the court-ordered restitution in this case.
Moving on, the People next contend defendant forfeited the right to challenge the amount of the restitution award by failing to object below. " '[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal.' [Citation.] This waiver applies to restitution orders. [Citations.] By failing to object to the restitution order and stipulating to the amount of the restitution, [defendant] has waived his challenge to the restitution order on appeal." (People v. Bradley (2012) 208 Cal.App.4th 64, 90.)
Defendant acknowledges his failure to raise a timely and specific objection to the trial court's final calculation of restitution, while pointing out that he did in fact object to the portion of the award representing the school district's claim for salary costs during the two-day school closure following his crimes, which totaled $97,728. He nonetheless asks that we exercise our discretion to consider his challenge to the entire award.
Specifically, defendant clarifies that he objected to the school district's claim of $97,728 in salary costs due to a two-day school closure caused by his crimes, but not to its claim of $24,433 in other maintenance, repair and overtime costs.
In considering defendant's arguments, we first note his challenge relates only to the sufficiency of the evidence and does not implicate any issue of broad public importance for our review notwithstanding the forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Nor does defendant contend his sentence was unauthorized or otherwise fundamentally defective. (See People v. Tucker (1995) 37 Cal.App.4th 1, 6.) As such, it appears the general forfeiture rule is appropriate here with respect to his challenge to the $24,433 portion of the award covering the school district's maintenance, repair and overtime costs: "Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
Thus, we need only address defendant's evidentiary challenge to the award of $97,728 in restitution to cover the school district's salary costs during the two-day school closure, a matter, as noted above, generally left to the trial court's broad discretion. (People v. Baker (2005) 126 Cal.App.4th 463, 467 [a trial court's restitution calculation is not subject to reversal on appeal unless there is no factual and rational basis for it].) We conclude the record before us does not warrant our disturbance of the court's award.
Indeed, defendant's principal failure in challenging the restitution award covering the school closure-related costs is not providing this court with a record sufficient to review his claim. Defendant is correct in his brief in stating the general rule that the party seeking restitution bears the burden to make a prima facie showing of economic loss. (People v. Giordano (2007) 42 Cal.4th 644, 664.) However, as the appellant in this case, defendant bears the burden, first, to present a complete and accurate record on appeal and, second, to affirmatively prove error based upon such record. (Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660 ["It is the duty of an appellant to provide an adequate record to the court establishing error. Failure to provide an adequate record on an issue requires that the issue be resolved against appellant"].) Here, defendant failed both requirements. There are several references in the reporter's transcripts in this case to calculations provided by the school district regarding its economic losses, which totaled $122,427, an amount covering $14,452 for school repair costs (including materials and labor), $1,227 for overtime pay for maintenance workers, $8,754 for salary costs for school employees testifying at trial, and $97,728 for salary costs arising from the school's two-day closure. The record also reflects that "letters that were [received] from the People and defense regarding their respective positions on the contested restitution were read and considered by the court." The trial court, after taking the matter under submission, thus expressly relied on these materials when accepting most of the school district's calculations and awarding it $122,161 in restitution. In doing so, the trial court noted for the record that, after "significant effort," the parties had "stipulated to certain amounts of claimed restitution. The one exception to the parties [sic] agreement involved a claim . . . for restitution for the two days in which [the school] was closed . . . ."
As this record reflects, while defendant insists there is no evidence to support the amount of the court's award, the trial court mentioned in the record at least three times letter briefs and documentary evidence relevant to the school district's calculated losses. Yet neither the letter briefs nor the underlying calculations are before this court. Under these circumstances, the proper course of action is to affirm the trial court's judgment. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [on appeal, the reviewing court presumes the trial court's judgment or order is correct, and " '[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown' "].)
Finally, in reaching this conclusion, we reject defendant's ultimate claim that he received ineffective assistance of counsel for the same essential reasons—to wit, his failure to provide a proper record and to affirmatively prove error. " 'The burden of proving a claim of inadequate trial assistance is on the appellant. [Citation.] He must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Additionally, he must establish prejudice, i.e., a reasonable probability that absent counsel's unprofessional errors the result would have been different, before he can obtain relief. [Citations.] Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Citations.]' [Citation.] Moreover, when no error occurred, 'defense counsel was not ineffective in making no objection.' [Citations.] Finally, a 'mere failure to object to evidence or argument seldom establishes counsel's incompetence.' [Citations.]" (People v. Felix (1994) 23 Cal.App.4th 1385, 1394-1395.) For the reasons set forth above, defendant cannot meet this standard, and the restitution award, therefore, must stand.
In supplemental briefing, defendant raises a new argument pursuant to Proposition 57, approved November 8, 2016, which abolished the direct filing of criminal charges against juveniles in adult criminal court. According to defendant, Proposition 57 applies to him because he was a minor over age 14 at the time of his offense and because the judgment against him is not yet final. As such, defendant argues, this court must conditionally reverse his convictions and return this case to the juvenile court with directions to hold a juvenile transfer hearing to determine his suitability for treatment in juvenile court. We disagree.
As defendant notes, recent authority, People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (hereinafter, Lara), holds: "The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, [In re] Estrada's [(1965) 63 Cal.2d 740] inference of retroactivity applies. As nothing in Proposition 57's text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (4 Cal.5th at pp. 303-304, italics added.) However, Lara's holding does not apply to defendant because, unlike the defendant in Lara, here, his conviction and sentence had in fact become a final judgment. (People v. Amons (2005) 125 Cal.App.4th 855, 869 [trial court has "no 'power to modify an imposed sentence, long ago final in terms of appealability, execution of which the court had suspended during a probationary period' "].) Accordingly, Proposition 57 provides defendant no relief on appeal.
DISPOSITION
The sentence and judgment are reversed and the matter remanded to the trial court with instructions to recalculate defendant's sentencing credits in accordance with the opinions reached herein. The judgment is affirmed in all other regards.
/s/_________
Jenkins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Pollak, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.