Opinion
G058614
01-19-2021
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP JARRETT BROWN, Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18NF3159) OPINION Appeal from an order of the Superior Court of Orange County, Michael F. Murray, Judge. Affirmed. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
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After being found in possession of a stolen motorcycle, defendant Phillip Jarrett Brown pled guilty to receiving a stolen vehicle. The trial court reserved jurisdiction on the issue of restitution and then continued the contested restitution hearing at least four times. The court denied Brown's fifth continuance request and ordered him to pay restitution in the amount of $9,914.52 based on the victim's bill of sale showing he paid that amount for the motorcycle and the victim's statement that the motorcycle was unridable when it was recovered and therefore was a total loss. Brown challenges both the restitution order and the trial court's denial of his fifth continuance request. He alternatively argues defense counsel provided ineffective assistance of counsel.
We affirm the restitution order. The victim presented a prima facie showing of loss that Brown failed to rebut, and the trial court acted within its discretion in denying Brown's fifth request to continue the restitution hearing. Brown's ineffective assistance of counsel claim is inadequately developed for direct review; Brown must pursue that claim, if at all, by a petition for writ of habeas corpus.
FACTS
In December 2016, the victim purchased a used Suzuki street motorcycle, which had about 15,000 miles on it, for $9,914.52. He reported it stolen less than three months later.
Police found the stolen motorcycle, with its vehicle identification number partially removed, in Brown's possession in November 2018. Brown pled guilty to receiving a stolen vehicle and to several drug offenses.
In December 2018, the trial court sentenced Brown to two years in county jail, imposed fines and fees, and reserved jurisdiction on the issue of restitution. In the months that followed, the contested hearing on restitution was continued at least four times.
In November 2019, at the continued restitution hearing, Brown's defense counsel asked the trial court for another continuance for reasons we discuss further below. The trial court denied the request.
Over the defense's objection, the trial court then admitted into evidence the probation department's restitution report and a series of subpoenaed documents. These materials included the victim's 2016 bill of sale for the motorcycle, which confirmed it was purchased for $9,914.52 ($8,485 plus fees), as well as the victim's written description of the motorcycle as a "Total Loss," "salvaged," and "unridable." The defense did not present any evidence.
The report also included the probation department's statement of costs, which recommended only $8,485 in restitution. As the prosecution noted in their restitution bench brief, however, the probation department evidently "mis-read [the victim's] documents and only verified the based [sic] sticker price of $8,485.00, not the actual full sales price of $9,914.52."
The prosecution argued the probation report and the victim's statement constitute prima facie evidence of the amount of loss, and therefore asked the trial court to order restitution in the amount of $9,914.52. In opposition, Brown's defense counsel argued the victim presented no documentation concerning the current status of the motorcycle (e.g., whether Brown still owned it or why he believed it to be a total loss). Defense counsel also underscored the fact that the police report (which is not before us) does not mention any damage to the motorcycle, and the motorcycle was released to the victim. Brown's counsel therefore "ask[ed] that the court deny the victim's request for restitution without prejudice and ask the victim if he can provide more documentation clarifying some of the reasons of why he's asking for this amount . . . ."
The trial court found "the People have made a prima facie case regarding the amount of restitution" through both the victim's statement and the supporting documents submitted for the probation department's contested restitution report. It noted the prima facie case is "always rebuttable . . . but the burden shifts to the defendant to rebut that amount," and "[t]hat has not been done in this case." The court therefore set restitution in the amount of $9,914.52, plus 10 percent interest from the date of loss. Brown appealed.
DISCUSSION
1. The Restitution Order
Brown first asserts the trial court abused its discretion when it ordered restitution of $9,914.52. We cannot agree.
Penal Code section 1202.4 requires a trial court to award restitution "in every case in which a victim has suffered economic loss as a result of the defendant's conduct." (§ 1202.4, subd. (f).) The restitution should be "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." (Ibid.) "To the extent possible, the restitution order . . . shall be of a dollar amount that is sufficient to fully reimburse the victim . . . for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to, all of the following: [¶] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible." (Id., subd. (f)(3)(A).)
All further undesignated statutory references are to this code.
The standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Prosser (2007) 157 Cal.App.4th 682, 686 (Prosser).) "Section 1202.4 does not, by its terms, require any particular kind of proof. However, the trial court is entitled to consider the probation report, and, as prima facie evidence of loss, may accept a property owner's statement made in the probation report about the value of stolen or damaged property." (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542-1543 (Gemelli).) Indeed, it is "well settled" that the victim's statement about the value of the stolen property constitutes prima facie evidence of its value for purposes of restitution. (Prosser, supra, at p. 690.)
"Once the victim has made a prima facie showing of his or her loss, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim." (Prosser, supra, 157 Cal.App.4th at p. 691; see People v. Millard (2009) 175 Cal.App.4th 7, 26.) "[T]o do so, [the defendant] may submit evidence to prove the amount claimed exceeds the repair or replacement cost of damaged or stolen property." (Gemelli, supra, 161 Cal.App.4th at p. 1543.)
We review a trial court's restitution order for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) "No abuse of that discretion occurs as long as the determination of economic loss is reasonable, producing a nonarbitrary result." (Id. at p. 665.) Even if the circumstances might also reasonably support a contrary finding, we do not reverse a restitution order if the circumstances reasonably justify the trial court's finding. (Prosser, supra, 157 Cal.App.4th at pp. 686-687.)
Applying those standards here, we conclude the trial court acted within its discretion when it ordered restitution of $9,914.52. The prosecution presented a bill of sale confirming the victim purchased the motorcycle for $9,914.52 ($8,485 plus fees), as well as a statement from the victim describing the motorcycle as a "Total Loss," "salvaged," and "unridable." The victim therefore made a prima facie showing, and the burden shifted to Brown to demonstrate the amount of the loss was lower. He did not carry that burden. In fact, he presented no evidence whatsoever.
Brown contends the trial court erred in awarding the victim the motorcycle's purchase price, which failed to account for depreciation and its current condition and mileage. These arguments misconstrue the burden of proof. Because the victim made a prima facie showing on the amount of the loss, the burden shifted to Brown to demonstrate that the amount was other than that claimed by the victim. He presented no evidence to rebut the victim's claim that the motorcycle was a total loss, salvaged, and unrideable, nor did he submit any proof concerning whether or to what extent the value of the motorcycle might have depreciated.
Although Brown's counsel argued at the restitution hearing that the police report does not mention any damage to the motorcycle, the police report is not in the record before us, and counsel's argument is not evidence.
Brown further argues the victim received a windfall because he received both the purchase price of the motorcycle and the motorcycle itself. But there is nothing in the record (other than counsel's argument, which is not evidence) confirming the motorcycle was in fact released to the victim. In any event, even assuming there was such evidence, Brown failed to rebut the victim's statement that the motorcycle was a total loss, salvaged, and unrideable, and further failed to submit evidence showing the motorcycle had any salvage value.
On this record, we are satisfied there is a factual and rational basis for the trial court's restitution order. No abuse of discretion has been shown.
2. The Denial of the Continuance Request
Brown next contends the trial court abused its discretion and denied him the right to due process when it denied his request to continue the restitution hearing. Again, we disagree.
As noted above, the trial court sentenced Brown in December 2018 and reserved jurisdiction on the issue of restitution. In the months that followed, the contested hearing on restitution was continued at least four times. At the November 2019 continued restitution hearing, Brown's counsel asked the trial court for yet another continuance. She explained she was hoping to present live testimony, but she was having unspecified "witness issues"; she wanted "to look into some things regarding the discovery and the victim's request"; and she was only recently assigned to the case. The prosecution opposed the continuance request, noting the court had ordered restitution almost a year ago; the court had received the probation department's restitution report in April and the subpoenaed documents in May; the defense had already received at least four continuances since that time; and this particular defense attorney had been on the case for a month and a half.
Defense counsel did not file and serve the requisite written notice before the hearing detailing specific facts showing that a continuance was necessary. (See § 1050, subd. (b).) --------
After considering the parties' arguments, the trial court denied Brown's continuance request. The court explained its thinking: "This case has been on the court's calendar, looks like since May of this year. It's been continued many times, and it's been through the hands of several different public defenders. And as I've indicated in the past, if the case gets continued long enough, it will be reassigned, and that's what happened, but that's just not a basis to continue the case over and over and over again. [¶] Just for the record, the court didn't receive a [notice under section] 1050. I don't know of any issues other than counsel would just like a little bit more time on the case. And given the fact that the plea on this case was December of 2018, and there's still no resolution on the restitution end of this case, the court [is denying] the request to continue because we need to resolve the restitution issue."
Continuances in criminal cases "shall be granted only upon a showing of good cause." (§ 1050, subd. (e).) A trial court has broad discretion to grant or deny continuances, and we review a trial court's denial of a continuance request for abuse of discretion. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 508.) "[D]iscretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (People v. Beames (2007) 40 Cal.4th 907, 920.)
On this record, we see no abuse of discretion. The trial court gave a reasoned decision for denying Brown's request for a fifth continuance. Its decision was reasonable given the lack of a written motion (see § 1050, subd. (b)), the amount of time the restitution issue had been pending, defense counsel's failure to specify what "witness issues" she was allegedly having and what else she wanted "to look into," as well as her failure to otherwise establish good cause for another continuance, either before or during the hearing.
3. Effectiveness of Counsel
Finally, Brown contends he was denied his constitutional right to the effective assistance of counsel when defense counsel proceeded with a hearing for which she was not prepared. According to Brown, defense counsel should have instead refused to participate in the restitution hearing, brought the hearing to a halt, and suffered sanctions.
The Attorney General counters that Brown's ineffective assistance of counsel claim cannot be resolved on direct appeal. We agree. Our Supreme Court has "repeatedly stressed 'that "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citation.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
The record on appeal does not provide an evidentiary basis on which we can decide Brown's ineffective assistance of counsel claim. It does not show why defense counsel went forward with oral argument, why defense counsel failed to present evidence in rebuttal, what if anything defense counsel or her predecessors did to investigate restitution-related issues or prepare for the hearing, or whether Brown would have received a better result if defense counsel had been more prepared. Because Brown's claim for ineffective assistance of counsel requires consideration of evidence outside the record, he should present that claim via a petition for writ of habeas corpus. (People v. Williams (2013) 56 Cal.4th 630, 691 [ineffective assistance of counsel claims had to be raised by habeas corpus petition "because they require investigation of evidence outside the record"]; People v. Michaels (2002) 28 Cal.4th 486, 526 ["a claim of ineffective assistance [of counsel] is more appropriately decided in a habeas corpus proceeding"].)
Nothing in this opinion should be construed as commenting on the merits of a potential petition for writ of habeas corpus.
DISPOSITION
The trial court's restitution order is affirmed.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.