Opinion
H046128
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. ROBERT BUENO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1639801)
I. INTRODUCTION
Defendant Robert Bueno appeals after pleading no contest to buying or receiving stolen property (Pen. Code, § 496, subd. (a)) and admitting that he had four prior "strike" convictions (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced defendant to 16 months in prison and ordered him to pay $142,791.61 in victim restitution.
All further statutory references are to the Penal Code unless otherwise indicated.
A subsequent order modified the restitution award to $159,361.61.
Defendant contends that the trial court's restitution order was unlawful because the court erroneously awarded the victim treble damages pursuant to section 496, subdivision (c). The Attorney General agrees, and both parties request this court to modify the restitution order to $44,311.61.
For reasons that we will explain, we will order the restitution order to be modified to $44,311.61 and affirm the judgment as modified.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Offense
On March 25, 2016, Myron Moncor went to his storage unit at West Coast Storage in San Jose to pick up some shoes. Moncor sold shoes, clothes, and fashion accessories for a living. When he entered the unit, he noticed that the 150 pairs of shoes he kept there were gone. Defendant had a storage unit on the same row as Moncor, a few units over.
On April 19, 2016, Moncor went to a different storage facility in San Jose and saw defendant had a dolly with shoes on it. Some of the shoes belonged to Moncor. Moncor asked defendant why he had taken his shoes, and defendant "got all crazy and called the police." Once the police arrived, Moncor was able to recover about 50 pairs of shoes.
B. Charges , Plea , and Sentence
Defendant was charged with buying or receiving stolen property (§ 496, subd. (a)) and misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). It was also alleged that defendant had been convicted of four prior strike offenses (§§ 667, subds. (b)-(i), 1170.12). Pursuant to a negotiated disposition, defendant pleaded no contest to buying or receiving stolen property and admitted the strike allegations. The trial court dismissed the remaining charge, sentenced defendant to 16 months in prison, and entered a general order of restitution.
C. Restitution Hearing and Order
Almost a year after sentencing, the trial court held a restitution hearing. Moncor testified that most of the shoes he recovered were irreparably damaged and unsellable. He was able to sell 15 pairs of the approximately 50 pairs of shoes he recovered. The shoes Moncor sold were worth $7,175, but he was only able to sell them for $6,325. Moncor also testified that he had incurred approximately $1,500 in transportation costs to travel to court for the hearing. Moncor's receipts for the stolen shoes, his inventory lists, and his transportation receipts were admitted into evidence.
After the hearing, the prosecution filed a letter brief requesting the trial court to award $153,673.61 in restitution, consisting of $158,602 in "total losses" from the stolen shoes plus $1,396.61 in travel costs minus the $6,325 Moncor made from the shoes he sold. Alternatively, the prosecution requested the court to award $44,311.61 in restitution based on the value of the shoes recovered by Moncor, which consisted of $49,240 worth of shoes plus $1,396.61 in travel costs minus the $6,325 Moncor made from the shoes he sold.
In a written decision, the trial court awarded $142,791.61 in restitution to Moncor. The order stated in part: "The court awards the amount of $49,240.00 to [Moncor] for the value of the shoes found in defendant's possession. The court will triple that amount as sought by [Moncor] and provided for under Penal Code section 496(c) . . . for a total of $147,720.00. This represents the value of the stolen shoes received by defendant and withheld from [Moncor] multiplied by three. That amount will be offset by $6,325.00 which represents the amount of money received by [Moncor] for the sale of shoes returned to [him] following the theft. The court also awards the $1,396.61 in transportation costs claimed by the defendant [sic]." The court explained that it "authorize[d] the victim to recover triple th[e] amount [of the shoes' value] as provided for in Penal Code section 496(c) to compensate the victim for the loss of the stream of income, use and enjoyment of that property while defendant had possession of it."
A subsequent order modified the restitution award to $159,361.61.
The record on appeal does not include the reason for the trial court's modification of the restitution order.
III. DISCUSSION
Defendant contends that the trial court erroneously awarded Moncor treble damages in restitution pursuant to section 496, subdivision (c). Defendant asserts that section 496, subdivision (c) "does not authorize the sentencing court to triple the actual damages claimed as victim restitution in a criminal case." (Capitalization omitted.) The Attorney General agrees.
A trial court's order of victim restitution is generally reviewed for abuse of discretion. (People v. Giordano (2007) 42 Cal.4th 644, 663.) However, because our analysis requires interpretation of a statute, our standard of review is de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.) "We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first, to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Flores (2003) 30 Cal.4th 1059, 1063.)
Section 496, subdivision (c) provides: "Any person who has been injured by a violation of subdivision (a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney's fees."
Based on its plain language, courts interpreting section 496, subdivision (c) have determined that it "authorizes a civil action for treble damages for violation of the statute." (MMM Holdings, Inc. v. Reich (2018) 21 Cal.App.5th 167, 185; Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 17 (Citizens of Humanity) ["section 496, subdivision (c) provides a private right of action for '[a]ny person who has been injured' " by a violation of subdivision (a) or (b) of the statute], disapproved of on another ground in Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) "[A] criminal conviction under section 496(a) [or (b)] is not a prerequisite to recovery of treble damages under section 496(c)." (Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1043.)
The courts' interpretation that section 496, subdivision (c) authorizes a civil action for treble damages comports with the statute's legislative history. The language currently found in subdivision (c) was added to section 496 in 1972. (Citizens of Humanity, supra, 171 Cal.App.4th at p. 18.) "It was the result of Senate Bill No. 1068 (1972 Reg. Sess.). The bill was introduced at the request of the California Trucking Association, with the goal of eliminating markets for stolen property, in order to substantially reduce the incentive to hijack cargo from common carriers. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1068 (1972 Reg. Sess.) as amended June 26, 1972.) Yet while an early version of the bill limited the plaintiffs who may bring civil actions to public carriers injured by the knowing purchase, receipt, concealment, or withholding of stolen property (Sen. Bill No. 1068 (1972 Reg. Sess.) as amended in Senate, May 30, 1972), the bill was subsequently amended to expand the class of potential plaintiffs to include '[a]ny person who has been injured by' the knowing purchase, receipt, concealment or withholding of stolen property. (Sen. Amend. to Sen. Bill No. 1068 (1972 Reg. Sess.) June 26, 1972.) Moreover, that same amendment included the sale of knowingly stolen property within its prohibitions, and allowed any person injured by the sale of knowingly stolen property to bring a civil action. In other words, it is apparent that the statute, as enacted, broadly allows anyone injured by the sale of knowingly stolen property to bring a civil action against the seller, in order to reduce thefts by eliminating the market for stolen goods." (Ibid., italics & fn. omitted.)
While section 496, subdivision (c)'s statutory language clearly confers the right of "[a]ny person . . . injured by a violation of subdivision (a) or (b)" to "bring an action for three times the amount of actual damages . . . sustained by the plaintiff," plus "costs of suit[] and reasonable attorney's fees," it does not include language authorizing a trial court to award treble damages in a criminal restitution order. (§ 496, subd. (c).) Thus, we conclude that section 496, subdivision (c) authorizes a person injured by a violation of subdivision (a) or (b) to bring a civil suit for treble damages, but it does not apply to victim restitution ordered in a criminal case.
Rather, victim restitution is governed by section 1202.4, which provides that "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).) The procedure for determining the appropriate amount of victim restitution for stolen or damaged property is set forth in section 1202.4, subdivision (f)(3)(A), which states: "To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and 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, all of the following: [¶] 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." (Italics added.)
"[R]estitution is not a substitute for a civil action to recover damages. [Citation.] As a matter of statutory law, there is no merger of civil and criminal remedies. (Code Civ. Proc., § 32; Pen. Code, § 9.) Those disparate actions serve different interests. 'A civil action is prosecuted by one party against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong.' (Code Civ. Proc., § 30.) In contrast, a criminal action is prosecuted in the name of the people of the State of California (Pen. Code, § 684), and is a '. . . proceeding by which a party charged with a public offense is accused and brought to trial and punishment.' (Pen. Code, § 683.)" (In re Brian S. (1982) 130 Cal.App.3d 523, 529, fn. omitted.)
For these reasons, we conclude that the trial court erred when, pursuant to section 496, subdivision (c), it tripled the amount of Moncor's actual loss to determine the restitution owed. Accordingly, we will order that the restitution award be reduced to $44,311.61 based on Moncor's total economic loss. (See § 1202.4, subd. (f).)
IV. CONCLUSION
The July 11, 2018 abstract of judgment and the July 11, 2018 order for restitution and abstract of judgment are ordered modified to reflect victim restitution in the amount of $44,311.61 payable to Myron Moncor. As so modified, the judgment is affirmed. The clerk of the superior court is ordered to send a copy of the modified abstract of judgment to the Department of Corrections and Rehabilitation.
Pages one and two of the July 11, 2018 order for restitution and abstract of judgment lists the restitution amount in item Nos. 3 and 11. The amount of restitution listed in both items shall be modified to $44,311.61. --------
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
MIHARA, J.