Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super.Ct.No. CC644969
Duffy, J.
Defendant Arnold Cosio pleaded no contest to attempted grand theft of a spool of copper wiring, valued by the victim at $800. Payment of victim restitution in that amount was ordered by the trial court under Penal Code section 1202.4, subdivision (f). Defendant asserts on appeal that his counsel was ineffective below for failing to object to the amount of restitution, as the copper wiring had a salvage value that should have been subtracted from its replacement value, and for failing to request a hearing on the amount of restitution in order to offer evidence to this effect. Because defendant has not demonstrated ineffective assistance of counsel, we reject his claim and affirm the judgment.
Further unspecified statutory references are to the Penal Code.
STATEMENT OF THE CASE
I. Factual Background
On October 6, 2006, defendant’s twin brother, Albert, asked for a ride in defendant’s minivan to Sims Metal, a metal recycling business in San Jose, to recoup the salvage value of some black wiring. They had agreed to sell the black wiring to Sims Metal for salvage value and to share the proceeds. On the way, Albert asked defendant to stop near a market. When defendant did so, Albert went onto the premises of Pacific Electric, where a truck that had been loaded with a spool of commercial copper wiring was parked in the yard. Albert took the spool, which had approximately 178 pounds of copper wiring on it, from the truck and loaded it into defendant’s van to take it to Sims Metal for recycling. Defendant and his brother removed the copper wiring from the spool, damaging it. They then drove on to Sims Metal.
The wiring was described as a 2,500 foot roll of “bare copper wire,” “seven strand,” “8 gauge.” The wiring has limited uses related to street or traffic signal lighting. Camacho testified at the preliminary hearing that the wiring had a value of “approximately $750.”
Timothy Camacho works for Pacific Electric. As he was inside the office on the morning of October 6, 2006, he heard a “thump,” which was the spool of copper wiring being thrown into defendant’s van. A neighbor confirmed with Camacho that she had seen the spool of copper wiring being stolen from his truck, and she described two “Hispanic fellows” driving a white minivan, like defendant’s, as having been involved. Camacho knew that such materials were often sold for salvage, so he drove to nearby Sims Metal, where he waited to see if someone would show up to sell the stolen wiring. He then saw defendant’s minivan and two individuals who resembled those whom his neighbor had described, drive up and unload the copper wiring. Camacho called the police and waited for their arrival.
Officer Guarducci of the San Jose Police Department responded to Camacho’s report of the theft and drove to Sims Metal. When he arrived, he spoke with Camacho and then observed defendant’s brother in line with a “flatbed cart with copper wire and some other wire on top of it” waiting to sell the wire for salvage value. The officer placed Albert Cosio into custody and arrested defendant at a nearby location. Albert later admitted having taken the wire and defendant admitted having driven Albert and the wire to Sims Metal.
II. Procedural Background
Defendant was charged by felony complaint in count 1 with grand theft of personal property worth over $400 in violation of sections 484 and 487, subdivision (a), and in count 2, with the attempted sale of stolen property in violation of sections 664 and 496, subdivision (a). The complaint also alleged that defendant had suffered a prior strike conviction within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, for residential burglary, and two prison priors within the meaning of section 667.5, subdivision (b), for possession of a controlled substance and false personation. After defendant was held to answer at the preliminary hearing, the complaint was deemed the information.
The complaint was later amended to add a third count of attempted grand theft in violation of sections 664, 484, and 487, subdivision (a). After being advised of his constitutional rights and the consequences of his plea, defendant pleaded no contest to this count and admitted the two prison priors and the prior strike in exchange for the promised dismissal of the first two counts at sentencing and a sentence of 16 months in state prison. When defendant changed his plea, he was advised that he would have to pay restitution to the victim if there was any financial loss, and he confirmed his understanding of this advisement. The probation report later stated that Timothy Camacho had relayed that “the replacement value for the damaged spool of 8 gauge copper wire was $800.00” and it recommended that defendant pay this amount to Pacific Electric as victim restitution.
As part of the arrangement, defendant also admitted a separate misdemeanor charge for violation of probation as a result of the instant offense.
At sentencing, the court dismissed counts 1 and 2 and imposed the promised 16-month prison sentence on count 3, which was the lower term, doubled for the prior strike, and struck the punishment for the prison priors under section 1385, subdivision (c)(1), to achieve this result. Without objection or a request for hearing on victim restitution, the court also imposed victim restitution of $800 under section 1202.4, subdivision (f), payable to Pacific Electric, consistently with the probation report’s recommendation.
Defendant timely appealed, asserting sentencing error. He specifically contends on appeal that he received ineffective assistance of counsel because his attorney did not object to the amount of victim restitution, which, he claims, should have been reduced by the salvage value of the stolen wiring, or request an evidentiary hearing in order to offer proof of the salvage value, thereby preserving the asserted error for appeal.
DISCUSSION
I. Victim Restitution Law
The statutory source of crime-victim restitution is section 1202.4. This section is the result of the state electorate’s enactment in 1982 of Proposition 8, which added article I, section 28 to the California Constitution. Mandatory restitution to all crime victims was adopted under that constitutional provision: “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 restitution from the persons convicted of the crimes for losses they suffer. [¶] Restitution shall be ordered . . . in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.” (Cal. Const., art. I, § 28, subd. (b).) The electorate required the Legislature to adopt laws to implement victim restitution within the calendar year after Proposition 8’s enactment. (Ibid.) As a result of Proposition 8, “[t]he Legislature has enacted, and frequently amended, a bewildering array of responsive statutes.” (People v. Birkett (1999) 21 Cal.4th 226, 228.)
Section 1202.4, subdivision (a)(1), provides that “[i]t is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” Subdivision (f) of the statute 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.” The order must provide for full restitution, unless there are “compelling and extraordinary reasons for not doing so, and [the court] states them on the record.” (Ibid.) And the restitution order “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, . . .” (§ 1202.4, subd. (f)(3).)
Although they are not entitled to a windfall, under subdivision (f) of the statute, “direct victims of crime have a statutory right to restitution on the full amount of their losses without regard to the full or partial recoupment from other sources (except the state Restitution Fund). (People v. Hove (1999) 76 Cal.App.4th 1266, 1272-1273 []; see also Pen. Code, § 1202.4, subd. (f) & [(f)](3) [use of phrases ‘full restitution,’ ‘fully reimburse,’ and ‘every determined economic loss’ requires expansive construction permitting victim to recover all determined economic losses].)” (People v. Baker (2005) 126 Cal.App.4th 463, 468.) This doctrine is comparable to the collateral source rule in tort cases, which precludes reduction in the amount of restitution even if the victim has received benefits or reimbursement from another source. (People v. Hamilton (2003) 114 Cal.App.4th 932, 944; People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1083 [because of this provision, fraud defendant must pay restitution even though Federal Deposit Insurance Corporation covered victim’s losses].)
In setting the amount of victim restitution, the trial court is entitled to consider the probation report. “[S]tatements by the victims of crimes about the value of property stolen constitute ‘prima facie evidence of value for purposes of restitution.’ [Citations.] ‘This is so because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.’ (People v. Foster [(1993)] 14 Cal.App.4th [939, 947, superseded by statute as stated in People v. Birkett, supra, 21 Cal.4th at pp. 238-245].) Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. [Citation.]” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.)
On direct appeal, a restitution order is reviewed for abuse of discretion, and the victim’s right to restitution is to be broadly and liberally construed. (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.) When there is a factual and rational basis for the amount of the award, no abuse of discretion will be found. (Ibid; People v. Baker, supra, 126 Cal.App.4th at p. 467.) The appellate court does not reweigh the evidence, deferring instead to the lower court if there is sufficient evidence to support the award and the inferences drawn to set it. (Id. at p. 469.) The trial court “ ‘ “must use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.” ’ [Citation.]” (People v. Keichler, supra, 129 Cal.App.4th at p. 1045.) The standard of proof below for victim restitution is by a preponderance of the evidence, not proof beyond a reasonable doubt. (People v. Baker, supra, 126 Cal.App.4th at p. 469.) Finally, a defendant must first challenge a restitution order in the trial court, or the issue is not preserved for direct appeal. (People v. O’Neal (2004) 122 Cal.App.4th 817, 820; In re S.S. (1995) 37 Cal.App.4th 543, 547-548; People v. Foster (1993) 14 Cal.App.4th 939, 944; People v. Zito (1992) 8 Cal.App.4th 736, 742.)
II. Defendant Has Not Demonstrated Ineffective Assistance of Counsel
Because of the failure to have preserved his challenge to the amount of restitution, defendant claims that he received ineffective assistance of counsel. But the court was not required to reduce the amount of Pacific Electric’s restitution by the scrap value of the stolen copper wire, of which there is no evidence in the record in any event. (People v. Baker, supra, 126 Cal.App.4th at p. 468.) Therefore, any objection below would not have been well taken. Further, there is no showing in the record that Pacific Electric even got the benefit of the scrap value by ending up in possession of the wire or the damaged spool. These points defeat a showing either that counsel’s performance was deficient or that defendant was somehow prejudiced by any failure of counsel to have challenged restitution below.
An ineffective assistance of counsel claim requires a showing that “counsel’s action was, objectively considered, both deficient under prevailing professional norms and prejudicial.” (People v. Seaton (2001) 26 Cal.4th 598, 666, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “[T]he burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Lewis (1990) 50 Cal.3d 262, 288; see also People v. Weaver (2001) 26 Cal.4th 876, 961.) This means that the defendant “must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to [the] defendant in the sense that it ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.]” (People v. Kipp (1998) 18 Cal.4th 349, 366, quoting Strickland, supra, 466 U.S. at p. 686.)
The first element of an ineffective assistance of counsel claim “requires a showing that ‘counsel’s representation fell below an objective standard of reasonableness.’ [Citations.]” (In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting Strickland, supra, 466 U.S. at p. 688.) “ ‘In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny . . .’ and must ‘view and assess the reasonableness of counsel’s acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act.’ [Citation.] Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.) Further, “[i]f the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.” (Ibid.; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [where record is lacking on appeal, ineffective assistance claim more appropriately litigated via habeas proceeding].)
As to the second element of a claim of ineffective assistance of counsel, a defendant must show that he was prejudiced by counsel’s conduct, that is, it is reasonably probable a more favorable result would have obtained absent counsel’s failings. (Strickland, supra, 466 U.S. at p. 688; People v. Lucas (1995) 12 Cal.4th 415, 436; In re Cordero (1988) 46 Cal.3d 161, 180.) But the court need not determine that counsel’s performance was indeed deficient before examining the prejudice asserted as a result of the alleged deficiencies. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice, which we expect will often be so, that course should be followed.” (Strickland, supra, 466 U.S. at p. 697.)
It is against this backdrop that we examine defendant’s claim of ineffective assistance of counsel. As noted, the court was not required to reduce the amount of the restitution award by the scrap value, if any, of the copper wiring. Full restitution, as required by section 1202.4, subdivision (f), means making a victim whole, regardless of reimbursement or recoupment received from other sources, except the state Restitution Fund, which is not in issue here. (People v. Hove, supra, 76 Cal.App.4th at pp. 1272-1273; People v. Baker, supra, 126 Cal.App.4th at p. 468.) Thus, counsel’s assistance was not deficient below because any objection to the amount of victim restitution or evidence adduced at a restitution hearing based on the salvage value of the wiring would not have been meritorious or effective to reduce the award. And we disagree with defendant’s assertion that there was no conceivable tactical reason for trial counsel’s failure to object to the amount of the fine or request a hearing on restitution. On the state of this record, which “ ‘ “sheds no light on why counsel acted or failed to act in the manner challenged[,]” ’ ” we must reject defendant’s claim. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.) Finally, even if counsel had objected to the amount of the fine or presented evidence of salvage value, that would not have changed the outcome here because as a matter of law, Pacific Electric was entitled to the full replacement value of the stolen property without regard to whether it may have had salvage value.
We accordingly conclude that defendant has failed to meet his burden of showing either that counsel’s performance was deficient or prejudicial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.