Opinion
A167829
03-14-2024
THE PEOPLE, Plaintiff and Respondent, v. FRANCIS JOSEPH ARTILLE, Defendant and Appellant.
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR238203.
Rodriguez, J.
In 2022, Francis Joseph Artille pled no contest to shooting at an occupied motor vehicle. The trial court suspended imposition of sentence, placed him on probation for two years, and ordered him to pay victim restitution. Artille appeals the restitution order and challenges a condition of probation. We affirm.
BACKGROUND
We briefly summarize the facts and provide more detail when discussing the claims: In July 2021, California Highway Patrol (CHP) officers responded to a freeway shooting. The victim (D.A.) told officers a Volvo had been driving recklessly, preventing him from passing, and slowing down to "brake check" him. Ultimately, the cars stopped next to each other at an intersection, and the Volvo's driver fired a gun into D.A's car and drove away. A nine-millimeter bullet shell was located near D.A.'s car, and there were bullet holes in the front passenger door and in a lunchbox located on the front passenger floorboard. The cars of D.A. and his wife - who was driving behind him - were equipped with dash cams, and the video footage assisted in identifying Artille. Artille was arrested and admitted shooting at the car.
In June 2022, Artille pled no contest to shooting at an occupied motor vehicle. (Pen. Code, § 246; undesignated statutory references are to this code.) Two months later, the trial court suspended imposition of sentence and placed him on formal probation for two years. After a contested hearing in May 2023, the court ordered him to pay victim restitution. Artille appealed from the May order.
DISCUSSION
Artille argues the trial court abused its discretion by ordering him to pay restitution for items held as evidence by law enforcement. We disagree.
In February 2023, the prosecution filed a motion for restitution. As relevant here, the prosecutor sought $345.32 in restitution to reimburse D.A. for two refurbished global positioning system (GPS) devices and two memory cards purchased to replace the property seized by the CHP as evidence; attached to the motion was D.A.'s claim for restitution and accounting. Artille opposed the motion, arguing the property was in police custody - it was "neither lost nor damaged," and D.A. had "suffered no economic loss." Artille contended the appropriate remedy was for D.A. to recover the property from law enforcement.
At an evidentiary hearing, D.A. testified he had not recovered his property. Moreover, he needed the GPS devices and couldn't "wait for them," so he purchased replacements. The trial court noted the property had been released but, when asked, D.A. could not say why he hadn't picked up his GPS devices from the police. The prosecutor argued the police had kept the property for over a year - it was apparently released in August 2022 - and D.A. incurred an expense replacing the items. After hearing argument from both sides, the court ordered restitution. It noted that D.A. lost use of the property while it was in police custody, and that the cost to temporarily rent GPS devices would have been significantly higher than the amount D.A. spent to purchase replacements.
The California Constitution and section 1202.4 require an award of victim restitution" 'in every case . . . in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.'" (People v. Giordano (2007) 42 Cal.4th 644, 652.) A trial court's only discretion is in "fixing the amount of the award." (People v. Rowland (1997) 51 Cal.App.4th 1745, 1751.) Restitution's purpose "is to reimburse the victim for economic losses caused by the defendant's criminal conduct, i.e., to make the victim reasonably whole." (People v. Guillen (2013) 218 Cal.App.4th 975, 984; § 1202.4, subd. (f)(3).) At a restitution hearing, the prosecution makes a prima facie case "based in part on a victim's testimony on, or other claim or statement of, the amount of his or her economic loss." (People v. Millard (2009) 175 Cal.App.4th 7, 26.) If such a showing is made," 'the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim.'" (Ibid.) We review a restitution order for abuse of discretion and review factual findings for substantial evidence. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.)
The trial court's finding that D.A. suffered an economic loss is supported by substantial evidence. The record demonstrates his property was taken into evidence after the July 2021 shooting, and it was not released for over a year. D.A. testified he needed the GPS devices and could not wait for their return, so he paid for replacements. No one disputed that renting GPS devices for over a year would have been more expensive than purchasing them. And the prosecution submitted D.A.'s restitution claim and evidence of pricing. Based on this record, no abuse of discretion appears.
Artille contends the restitution resulted in a windfall for D.A. because he never suffered a loss. But Artille largely fails to grapple with the period of over a year during which D.A. lost the use of his property without the ability to recover it from the police. Sufficient evidence in the record supports the inference that D.A. purchased replacements soon after his property was confiscated. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1546.) Artille's reliance on People v. Chappelone (2010) 183 Cal.App.4th 1159 and People v. Valle (2023) 93 Cal.App.5th 1329 is misplaced. In those cases, the victims had recovered their property by the time of the restitution hearing. (Chappelone, at p. 1180; Valle, at p. 1331.) Moreover, unlike those cases, the victim here testified he incurred expenses to replace property because he couldn't wait for it to be released by law enforcement.
Artille next challenges a probation condition requiring him to attend and complete counseling and therapy as directed by the probation officer. He argues the condition improperly delegates judicial authority to the probation department, and it is unconstitutionally overbroad and vague. We are without jurisdiction to reach the merits of this argument.
The notice of appeal indicates Artille appealed from the trial court's May 5, 2023 restitution order." 'Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.' [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal." (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.) Moreover, the probation condition at issue was imposed on August 26, 2022, and it was appealable. (§ 1237, subd. (a) [appeal may be taken from "order granting probation"]; see Cal. Rules of Court, rule 8.308(a) [60 days to file notice of appeal]; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) An "appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment." (Ramirez, at p. 1421.)
We also observe Artille did not object to the probation condition; rather, he expressed agreement to the terms imposed. (People v. Welch (1993) 5 Cal.4th 228, 234-235 [failure to object to object to probation condition forfeits the claim].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Tucher, P. J., Fujisaki, J.