PEOPLE v. STANLEYAppellant's Opening Brief on the MeritsCal.Mar 11, 2011IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA $185961 Plaintiff and Respondent, y SUPREME COURT LEROY GENE STANLEY, MAR 11 2011 Defendant and Appellant. Frederick K. Ohlrich Clerk Deputy APPELLANT’S OPENING BRIEF ON THE MERITS Third District Court of Appeal, No. CO63661 Yolo County Superior Court, No. 093110, Hon. David Rosenberg, Judge ROBERT NAVARRO Attorney at Law Bar No. 128461 P.O. Box 8493 Fresno, California 93747 Tet: 559.452.0934 Fax: 559.452.0986 Attorney for Appellant Leroy Gene Stanley TABLE OF CONTENTS ISSUE UNDER REVIEW ............. 0.000000 1 COMBINED STATEMENT OF THE FACTS AND CASE........ 1 STATEMENT OF APPEALABILITY ....................200.. 3 STATEMENT OF THE FACTS ............. 00000: eee eee 3 ARGUMENT........... 0.0.0: e eeeae 4 RESTITUTION FOR REPAIRING PROPERTY DAMAGE SHOULD BE SET AT OR REASONABLE CLOSE TO THE REPLACEMENT VALUE OF THE ITEM ........... 4 CONCLUSION ........ 0.0...ees 14 CERTIFICATE OF WORD COUNT ...................0.. 14 TABLE OF AUTHORITIES CASES HandElectronics, Inc. v. Snowline Joint Unified Schoo! Dist. (1994) 21 Cal.App.4th 862 ................. 0.02 5,8 In re Alexander A. (Feb. 10, 2011) 192 Cal.App.4th 847, 2011 WL 453253 .... 11-12 In re Dina V. (2007) 151 CalApp.4th 486 .............. 0.020. ee eee passim In re Standard Jury Instructions in Criminal Cases — Report No. 2010-01 (Fla. 2010). So.3d__—, 2010 WL 4117070 .............. 10 Miller v. State (Tex.App., Feb. 23, 2011)_ S.W.3d__, 2011 WL 653034 ... 10 People v. Chappelone (2010) 183 Cal.App.4th 1159 «1...eee 5-6 People v. Fortune (2005) 129 Cal.App.4th 790 ........... 0... eee eee 12 People v. Foster (1993) 14 Cal.App.4th 939 2.6...eee 8 People v. Kelly (2010) 189 Cal.App.4th 73) ww.eee 12 People v. Yanez (1995) 38 Cal.App.4th 1622 ..................0..004 passim Shook v. Beals (1950) 96 Cal.App.2d 963 ............ 0.2 eee eee 4-5 Smith v. Hill (1965) 237 Cal.App.2d 374 0.0... ccc eee cece eee ee 8 State v. Baxter (Kan.App. 2005) 34 Kan.App.2d 364, 118 P.3d1291 ......... 10 TABLE OF AUTHORITIES State v. Casto (Kan.App. 1996) 22 Kan.App.2d 152,912 P.2d 772 .......... 10 State v. Hunziker (Kan. 2002) 274 Kan. 655, 56 P.3d 202 «©... eee. 10 STATUTES AND OTHER AUTHORITIES 2003, CCH iInc.; http://taxguide.complete-tax.com/text/Q14_2980.asp ......... 9 http://www.irs.gov/businesses/small/article/0,,id=137026,00.htmil . 9 Penal Code section 1202.4, subdivision (f)(3)(A) ............. 2 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, $185961 Plaintiff and Respondent, V. LEROY GENE STANLEY, Defendant and Appellant. APPELLANT’S OPENINGBRIEF ON THE MERITS ISSUE UNDER REVIEW The court granted review on the following issue: Did thetrial court err in awarding the victim restitution for the costs of repairing her damagedtruck, when the estimated costof the repairs was overthree times the purchaseprice she paid 18 months earlier? COMBINED STATEMENTOF THE FACTS AND CASE Appellant, who was intoxicated, banged on the victim’s door demandingto belet in. She called the police, and saw that appellant had moved by hertruck, and then she heard loud banging noises. After police arrived, an inspection of the truck found the driver's side door was dented with damageto the doortrim and antenna as well. (CT 11.) Appellant was charged with having vandalized the truck (CT 54- 55), and entered a no contest plea to vandalism in exchangefor a 16- month sentence and dismissal of other charges. (CT 56-58; RT 2-3.) 1 Stanley was sentenced in accordance with the plea agreement. (CT 60-61, 72; RT 11-14.) The parties were directed to submit briefs on the issue of restitution. (CT 60.) The probation report recommended a direct victim restitution order based onthe costof repair charged by the auto body shop. (CT 66; RT 11.) At the preliminary hearing, the victim said her truck was a 1975 four-door Dodge pickuptruck (CT 39-40) which she bought 18 months earlier for $950 in cash. (CT 44.) She said the truck had been in good physical and operating condition. (CT 43-44.) Repair of the truck was estimated at $2,812.94. Thus, the cost of repair was aboutthree times the worth of the vehicle at purchase. (CT 38, 48; RT 9.) Under People v. Yanez (1995) 38 Cal.App.4th 1622, appellant argued that restitution should be set at the purchaseprice paid by the victim and not the cost of repair. The prosecution said that restitution equals the cost of repair, citing /n re Dina V. (2007) 151 Cal.App.4th 486, which refused to follow the opinion in Yanez. (CT 79-81.) The court found that the victim was entitled to an amountthatit determined would makeher “whole” which was the $2,812.94 cost of repairing the vehicle. (CT 83; RT 21-22.) A timely notice of appeal wasfiled on December 10, 2009. (CT 86.) The Court of Appealaffirmed thetrial court’s restitution order in a decision certified for partial publication, dated August 3, 2010. STATEMENT OF APPEALABILITY The judgment from which appellant appeals finally disposeofall issues betweenthe parties (California Rules of Court, rule 14(a)(2)(B)), and are appealable pursuant to Penal Code §1237, subdivision (a). ARGUMENT RESTITUTION FOR’ REPAIRING PROPERTY DAMAGE SHOULDBE SETAT OR REASONABLE CLOSE TO THE REPLACEMENTVALUE OF THE ITEM Asthis Court’s statement of the issue on this appeal makesclear, the restitution in this case was three timesthe costoffully replacing the victim’s four-door Ford Adventurer pickuptruck, which was 24 years old (CT 39-40, 44) at the time it was damaged by appellant’s conductin 2009. The victim had purchased the truck for $950 one year and one half earlier. (CT 44.) The court awardedrestitution based on the cost of repair in the amount of $2,812.94. (RT 9.) Appellant submits thatit is instructive that under long established civil tort law the financialliability to the tortfeasor for damaging personal property beyond repair is the replacement value of the lost item. In Shook v. Beals (1950) 96 Cal.App.2d 963, the representative ofa five- manfishing trip was warnedbythe plaintiff owner that the airplane he was renting was limited to four persons total and the owner was assured only four persons wouldridein it. (/d. at 965.) However,ail five men boarded the plane. (/d. at 970.) Although told notto try to land at Garberville because of the short runway, enroute the men soughtdirectionsto that airport, but were againtold that the airport was too small for the aircraft. The evidence wasin conflict as to whether they were also warnedoff of landing at Ft. Bragg, where they tried 4 landing, but the planeflipped and was destroyed. (/d. at 965.) The jury awarded the owner $10,000, based on his testimony that the sum represented the worth of his plane, which wasin excellent condition, at the time of its loss. The appellate court affirmed the award stating “The proper measure of damagesis the reasonable market value of the personalproperty destroyed.” (/d. at 974; see also Hand Electronics, Inc. v. Snowline Joint Unified School! Dist. (1994) 21 Cal.App.4th 862, 870 [If the property is wholly destroyed, the usual measure of damages is the market value of the property”].) lf instead of vandalizing the victim’s 1975 truck, had appellant been a drunk driver who crashed into it and rendered the vehicle unrepairable, the restitution available to the victim would have beenits value at the time of destruction, which was not precisely determinedin this case, but which would be at or near the $950 shepaid forit not long before.'! Other than a possible “surcharge” for costs associated with replacing the truck, no other measure of damages regarding the truck would bepossible. However, it should not be the case that destroying property beyond repair worksto the financial advantage of a criminal defendant rather thanhis injuring it, but leaving it in a fixable state. The restitution ' As in Shook v. Beals, supra, the victim testified the truck was in excellent condition. (CT 43.) statute, Penal Code section 1202.4, subdivision(f), and all the case law recognize that the actual cost of repair is an appropriate measure of restitution, but it must be reasonablein relation to the particular loss at issue. In People v. Chappelone (2010) 183 Cal.App.4th 1159, the appellate court identified the borders of appropriate victim restitution: Arestitution orderis intended to compensatethe victim for its actual loss andis not intendedto provide the victim with a windfall. ([People v.] Millard [(2009) 175 Cal.App.4th 7] at p. 28; In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017-1018.) While the court need notorderrestitution in the precise amountofloss,it “must use a rational method that could reasonably be said to makethe victim whole, and may not make an order which is arbitrary or cap- ricious.” (People v. Thygesen (1999) 69 Cal.App.4th 988, 992; see also /n re Brian S. (1982) 130 Cal.App.3d 523, 527 [“court may use any rational method offixing the amountof restitution which is reasonably calculated to make the victim whole and which is consistent with the purpose of rehabilitation’]; People v. Ortiz (1997) 53 Cal.App.4th 791, 800 [“While the amount of restitution cannotbe arbitrary or capricious,there is no requirement the restitution order be limited to the exact amountof the loss in which the defendantis actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action.”]; People v. Akins (2005) 128 Cal.App.4th 1376, 1382 [same].) (ld. at 1172-1173, italics added, parallel citations and internal quote marks and brackets omitted.) Presented with figuring out restitution in a massive stolen merch- andise crime, the Chappelone court reversed the trial court’s award because, while the trial court relied on the victim’s proffered basis for 6 the valuation of the merchandise established by an inventory service (id. at 1168), “it clearly resulted in a merchandise value that was highly inflated over the actual value of the merchandise to Target.” (/d. at 1175.) Appellant submits that where,as here, restitution is based on the cost of repair but results in a monetary award set at three times the value of the damaged merchandise thatrestitution is “highly inflated over the actual value” of the item and should not be allowed. Thetrial court below essentially basedits victim restitution order on ananalysis of whether the issue was controlled by People v. Yanez (1995) 38 Cal.App.4th 1622, as argued by appellant, or by /n re Dina V. (2007) 151 Cal.App.4th 486, as the prosecution contended. Neither case fully supports the award madehere. | Undercivil law, Yanez found thata plaintiff is entitled only to the lower amountof either the item’s market value at the time of the loss, or the cost of reasonable repair to the item. (/d. at 1626.) The court believed that the civil law rule provided theplaintiff with full compensa- tion for the loss, in other words the victim was made whole, and therefore a crime victim’s recovery for damages should not be greater than that permitted bycivil law. (/d. at 1627.) The market value at the time the Yanez victim’s car was stolen was not determinedin thetrial court, but the Blue Book value was known to beless than the costof repair, thus the reviewing court reversed the restitution order and remanded the matter for a proper determination, undercivil law,ofits replacement value. (/d. at 1628.) The Yanez decision is opento criticism becauseofits insistence on the lowerof the two valuations, fair market replacement or reason- able repair. Section 1202.4, subdivision (f), does not require that restitution be limited to a the “lower amount;”it requires only that the victim be made whole. The question then is — when doesthe cost of repair become unreasonable in relation to the replacement cost? In Yanez, the court relied on Smith v. Hill (1965) 237 Cal.App.2d 374, for the statement of the civil rule of damagesto personal property. (Yanez, at 1626.) The Smith case gives an indication of the limits of reasonable repair, at least undercivil law. The measure of damage for wrongful injury to personal property is the difference between the market value of the property immediately before and immediately after the injury, or the reasonable costof repair if such cost be less than the depreciation in value. The amount actually paid for repairs is some evidence of the reasonable value of _ necessary repairs: and if such repairs have in fact been made, though there is no evidence as to depreciation in value, the court may not assumethat the depreciation was of lesser amount than the costof repairs. If repairs have in fact not been made,the estimated cost of repairs reas- onably necessary calls for expert testimony. (Id. at 388, citations omitted; see also HandElectronics, Inc., supra, 21 Cal.App.4th at 870 [“If the cost of repairs exceeds the depreciation in 8 value, the plaintiff may only recover the lesser sum. Similarly, if depreciation is greater than the cost of repairs, the plaintiff may only recover the reasonable cost of repairs”].) An automobile reaches full cumulative depreciation when the amount “claimed over the years is equal to your original cost or other basis for the asset.” (See 2003, CCHInc.; http://taxguide.complete- tax.com/text/Q14_2980.asp; http://www.irs.gov/businesses/small/art- icle/O,,id=137026,00.htmi) Thus,if reasonable repairs cannot exceed depreciation, and depreciation cannot exceed the purchasecostto the victim, then an amount equal to the cost of the item is ostensibly an upperlimit on the reasonable costof repair. Becausecriminalrestitution is not boundbycivil law limits, it can be envisaged that a reasonablecostof repair might be somewhat more than the original cost of the damaged asset, but appellant submits that it should not be much more. This measureis similar to those in other jurisdictions. A proposed modelcriminal jury instruction from Florida reads: Any damage to Jane Doe's automobile. The measure of such damage is the reasonable cost of repair, if it was practicable to repair the automobile, with due allowance for any difference between its value immediately before the collision and its value after repair. You shall also take into consideration any loss Jane Doesustained for towing or storage charges andby being deprivedofthe use of her automobile during the period reasonably requiredforits repair. (See /n re Standard Jury Instructions in Criminal Cases — Report No. 2010-01 (Fla. 2010)_—-s- So.3d__, 2010 WL 4117070, *30.) Kansascriminal courts have developed a similar formula. The appropriate amountof restitution is the amount required to reimburse the victim for the actual loss suffered. (State v. Hunziker (Kan. 2002) 274 Kan. 655, 663-664, 56 P.3d 202.) If damaged property can be restored to its previous undamaged condition, the measureofrestitu- tion is the reasonable cost of repairs plus the reasonable amount necessary to compensateforlossof its use. (State v. Casto (Kan.App. 1996) 22 Kan.App.2d 152, 154, 912 P.2d 772.) However, Kansas courts have consistently held that an awardofrestitution that exceeds fair market value constitutes an abuseofdiscretion. (Hunziker, supra, 274 Kan. at 664, italics added; Stafe v. Baxter (Kan.App. 2005) 34 Kan.App.2d 364, 366, 118 P.3d 1291.) The court's determination of restitution must be based on reliable evidence whichyields a defensible restitution figure. (Hunziker, supra, 274 Kan. at 660, 56 P.3d 202; but see Miller v. State (Tex.App., Feb. 23,2011) S.W.3d___, 2011 WL 653034 at *3 [reversing $6,299 cost of repair restitution order regarding vandalized car, noting that in Texas “restitution does not include cost of repair; it includes the value of the property on the date of the dam- age, or the value of the property on the date of sentencing less the value of any part of the property that is returned on the date the 10 property is returned’].) The other case relied on below, /n re Dina V., supra, 151 Cal.App.4th 486, affirmed, ina stolen car case,a victim restitution order of $4,419.72 as the cost of repairing the car which had a replacement value of only $3,000. (/d. at 488.) Dina V. rejected the contention in Yanez that victim restitution was limited to the amount of damages recoverable in a civil action, and found that restitution was notlimited to the item’s replacement cost because “Limiting the amountof rest- itution to the replacement cost would not makethe victim whole.” (/d. at 488-489.) The rationale was that the replacement value does not compensatethe victim for the associated troubles of actually obtaining another, but virtually identical, vehicle. (/d. at 489.) The award in Dina V. effectively valued that cost of inconve- nience at $1,419, the amount of the repair bill over the amount of the replacement value. Arguably, this amounted to a 47 percent “sur- charge.” In appellant's case, the “surcharge” amounted to a 300 percent surcharge on the value of the vehicle. Even if one disagrees with it, the Yanez court set a limit on reasonable restitution while Dina V. did not make any ventureinto that territory. In a very recent opinion, the Yanez and Dina V. conflict was again analyzed, this time in the contextof restitution under the Welfare and Institutions Codein a juvenile delinquency case. The courtin /n re 11 Alexander A. (Feb. 10, 2011) 192 Cal.App.4th 847, 2011 WL 453253, the court upheld the cost of inconvenience theory in a damaged car case: Choosing repair over replacement is not intended to reimbursethe victim for noneconomicinjury but acknowl- edges the practicalities involved in cleaning up after a crime spree. The victim is entitled to a resolution. (Id. at *5.) The court also addedto the rationale the proposition that making the minor pay an amount substantially over the cost of replace- ment wasinstructive and rehabilitative. (/d. at *6.) The cost of repair was set at $8,219.19 for a 1992 Honda Accord, and the highest estimated replacement value was $5,300, so the “surcharge” was almost $3,000, or 57 percent of the cost of replacement. (/d. at *1.) Based on these factors, the court affirmed the restitution order as reasonable, while noting that — There may be somepoint at which the costs to repair stolen or damaged property so exceed its value that a restitution order for repair costs may no longerberational in that it results in a windfall to the victim or does not serve a rehabilitative purpose. (id. at *6.) The opinion cites People v. Kelly (2010) 189 Cal.App.4th 73 and People v. Fortune (2005) 129 Cal.App.4th 790, for the above proposition, but neither case decides or suggests where the “point” of unreasonableness lies, and neither are physical property damage cases. Clearly, however, the steep cost of repair in AlexanderA.isstill, in proportional terms, only one-sixth of the order madein this case. 12 Appellant submits that the appellate decisions in AlexanderA., In re Dina V., and this case are incorrect. While appellant cannot postulate a precise formula, he argues that the cost of repair must remain close to the cost of replacement while allowing for a reasonable surchargeof perhapstenorfifteen percentfor the inconvenienceto the victim. Appellant recognizes that a surchargeorcost of inconvenience is not necessarily related to the cost of replacement. Theoretically, replacing a $100,000 luxury car would be nocostlier than replacing the $950 1975 Ford Adventurer here. However, that may not hold true with some typesof property, as in arson damageto a residence. Conceiv- ably, the greater the cost of repair to the home, the greater the effort that would be expended in obtaining the repairs. But, the reasonablenessof the cost of repair must be subject to some standard that so far no court has identified. Under any theory, the award in this case was excessive and must be reversed. 13 CONCLUSION Appellant respectfully requests that the judgments of the superior court and the Court of Appeal be reversed. Dated: March 10, 2011 Respectfully submitted, [o[Rabert Navave. ROBERT NAVARRO Attorney for Appellant CERTIFICATE OF WORD COUNT Pursuantto California Rules of Court, rule 8.204(c) i, Robert Navarro, appointed counselfor Leroy Stanley, under penalty of perjury underthe lawsof the State of California, hereby certify that the attached brief contained 3,053 words (excluding cover and tables) as calculated by WordPerfect X3. Dated: March 10, 2011 [so [Rebett Navaviw. ROBERT NAVARRO Attorney at Law Bar No. 128461 P.O. Box 8493 Fresno, California 93747 tet: 559.452.0934 Fax: 559.452.0986 Attorney for Appellant 14 DECLARATION OF SERVICE BY MAIL | am residentofthe State of California, over the age of eighteen and am not a party to this action. My business address is P.O. Box 8493, Fresno, California 93747. | am readily familiar with the business practices of the law office of Robert Navarro for the collection and processing of correspondence for mailing with the United States Postal Service, as described in CodeofCivil Procedure section 1013(a). In the ordinary course of business, correspondenceplacedforcollection and mailing is on the same day deposited with United States Postal Service in a sealed envelope with the postagefully prepaid. | am employedin the county wheresaid collection and processing of mail takes place. On March10, 2011, the attached: APPELLANT’S OPENING BRIEF ON THE MERITSin People v. Stanley, California Supreme Court, No. S185961, was placed in envelopesfor collection and mailing following our ordinary practice at P.O. Box 8493, Fresno, California 93747. The enve- lopes were addressed asindicated below: Respondent Appellant Jeffrey Firestone Leroy Stanley California Attorney General's Office P.O. Box 944255 Trial Court Sacramento, CA 94244-2550 Hon. David Rosenberg, Judge Yolo County Superior Court Program One Court Street Deborah Prucha Oroville, California 95965 Central California Appellate Program 2407 J Street, Suite 301 Prosecution Sacramento, CA 95816 Martha Hopzapfel, D.D.A. Yolo County District Atty’s Office Trial Counsel 301 2nd Street Richard Van Zandt, D.P.D. Woodland, California 95695 Yolo County Public Defender’s Office 814 North Street Court of Appeal Woodland, California 95695 Third Appellate District 621 Capitol Mall, 10th Floor Sacramento, CA 95814 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed March 10, 2011, at Fresno, California. [s [Robert Navarro.