Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI026428, Margaret A. Powers, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant Kyle Adam Dershem.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant Jonathan Henry Laird.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant Kyle Adam Dershem appeals from his conviction of felony vandalism (Pen. Code, § 594, subd. (b)(1)) and misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)). Defendant Jonathan Henry Laird appeals from his conviction of felony vandalism (Pen. Code, § 594, subd. (b)(1)). We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Because the matter was disposed of by plea agreements, the facts are taken from the probation reports. On the night of January 28 and early morning of January 29, 2007, several parked vehicles in Hesperia were vandalized by having windows smashed. Some of the damage was consistent with being made by a crowbar. That night, Dershem, who was intoxicated, lost control of the vehicle he was driving, and the vehicle rolled over near where some of the vandalism had occurred. Laird was found walking down the street; he had a laceration on the side of his head and appeared to be disoriented. A crowbar, which appeared to have “fresh marks,” was found on the front seat of defendant’s vehicle. Defendants were wearing clothing similar to that the vandalism suspects were described as wearing.
Dershem’s probation report indicates that Dershem was identified as the driver by his own statements. Dershem later denied driving and stated Laird had been the driver. Laird denied any memory of the accident or the vandalism.
Defendants were charged in a complaint with five counts of felony vandalism (Pen. Code, § 594, subd. (b)(1)), and Dershem was charged with driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) and driving with a blood alcohol content of.08 percent or more and causing injury (Veh. Code, § 23513, subd. (b)).
On February 8, 2007, Dershem entered a plea of nolo contendere to one count of felony vandalism (Pen. Code, § 594, subd. (b)(1)) and to one count of misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)) as a lesser included offense to the charge of driving under the influence of alcohol causing injury. Laird entered a plea of nolo contendere to one count of felony vandalism (Pen. Code, § 594, subd. (b)(1)). All other counts were dismissed with a Harvey waiver in regards to restitution. Both defendants were put on probation under terms and conditions, and the court reserved jurisdiction as to restitution.
From People v. Harvey (1979) 25 Cal.3d 754.
On June 26, 2007, Dershem filed a notice of appeal and request for a certificate of probable cause. The trial court denied the request.
The trial court conducted a restitution hearing on September 21, 2007, following which the trial court modified probation to require defendants to make restitution to the victim, Ryan J., in the amount of $601.02 plus an administrative fee.
A further restitution hearing was held on November 30, 2007. Janis Elias testified she and her husband Kenneth were owners of a trucking company, and their big rig was vandalized on January 29, 2007. She testified that they had paid $217.75 to have a broken driver’s side window replaced and that her husband would not have been able to drive the truck for purposes of their business without having the window replaced. Kenneth was scheduled to leave on a “round-trip” to Texas on the morning of January 29, 2007, and he would have been paid $1.10 per mile for the approximately 3000-mile, six-day trip. Because he had to get the window repaired, the load was given to someone else. Janis testified that they would have earned approximately $2,700 for the trip, after expenses. Following the hearing, the trial court ordered defendants to make restitution to Kenneth in the amount of $2,917.75 plus an administrative fee.
Dershem’s defense counsel requested an additional hearing on the ground that he had received information indicating Janis might have committed perjury in her testimony. The trial court stayed the restitution order temporarily and ordered a hearing. Following additional hearings, the trial court ordered that Dershem “is to cooperate in the payment of restitution to the victims and be responsible for making all restitution in the event the co-defendant Jonathan Laird fails to comply with the restitution order[.] [¶] Defendant’s responsibility for payment of restitution to victims is joint and severable w/co-defendant Jonathan Laird[.]” A corresponding order was issued with respect to Laird.
Both defendants filed notices of appeal on October 24, 2008. The notice stated that the appeal followed a no-contest plea and was “based on the sentence or other matters occurring after the plea”; specifically, the restitution hearing. Defendants requested, and the trial court granted, certificates of probable cause as to “[a]ny and all issues with regard to the Restitution Hearing[,] [i]ncluding but not limited to denial of motion to reduce restitution amount.”
III. DISCUSSION
After defendants appealed, and upon their request, this court appointed counsel to represent them. Counsel for both defendants have filed briefs under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
A. Potential Arguable Issues Raised by Counsel
The potential arguable issues raised by both counsel were: (1) whether the trial court erred when it found the victim did not lie at the restitution hearing; and (2) whether the restitution order was supported by substantial evidence.
The trial court found, following a hearing, that it was “not convinced that the witness lied by this evidence. There’s been some questions raised. I think they were pretty much raised at the time of the hearing. They didn’t have the same witnesses to refute Ms. Elias at the time. But, I’m not sure this evidence would have, even then.”
The trier of fact is the sole judge of the credibility of witnesses. (People v. Hovarter (2008) 44 Cal.4th 983, 997.) For us to reject the testimony of a witness who has been believed by the trier of fact, “‘there must exist either a physical impossibility that [the testimony is] true, or it must be such as to shock the moral sense of the court; it must be inherently improbably and such inherent improbability must plainly appear.’ [Citation.]” (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Defendants have shown no basis here for us to second guess the trial court’s finding as to the witness’s credibility, and her testimony therefore constituted sufficient evidence to support the restitution order.
B. Potential Arguable Issues Raised by Dershem
We offered defendants an opportunity to file personal supplemental briefs, and Dershem has done so. In his brief, Dershem asserts as issues that (1) there was no evidence he committed the crimes with which he was charged, (2) the lost wages the Eliases claimed were caused by their own ignorance of the law, (3) the arresting officer falsified his police report, (4) the trial court should not have ordered restitution against him unless his codefendant failed to pay restitution, and (5) he received ineffective assistance of counsel.
1. Issues Going to Validity of Plea
“A defendant who has pleaded guilty or nolo contendere to a charge in the superior court, and who seeks to take an appeal from a judgment of conviction entered thereon, may not obtain review of so-called ‘certificate’ issues, that is, questions going to the legality of the proceedings, including the validity of his plea, unless he has complied with section 1237.5 of the Penal Code and the first paragraph of [former] rule 31(d) of the California Rules of Court—which require him to file in the superior court a statement of certificate grounds as an intended notice of appeal within 60 days after rendition of judgment, and to obtain from the superior court a certificate of probable cause for the appeal within 20 days after filing of the statement and, hence, within a maximum of 80 days after rendition of judgment.” (People v. Mendez (1999) 19 Cal.4th 1084, 1088, fns. omitted.)
Dershem’s contentions that there was no evidence that he committed the crimes with which he was charged, that the arresting officer falsified his police report, and that he received ineffective assistance of counsel with respect to his entry of the plea, go directly to the validity of the plea. Dershem failed to obtain a certificate of probable cause as to those issues, and, moreover, the notice of appeal states that appeal was taken only from the restitution order dated October 3, 2008. Thus, those contentions are not properly before us. (People v. Mendez, supra, 19 Cal.4th at pp. 1098-1099.)
That contention includes the argument that trial counsel provided ineffective assistance by failing to require proof of the dismissed counts as a basis for restitution to the victims of those counts. Dershem pleaded nolo contendere to count 5, and the trial court dismissed the remaining counts under a Harvey waiver. In entering his plea, defendant initialed the statement on his declaration that “I waive my rights regarding dismissed counts and any charges the district attorney agrees not to file to the extent that the court may consider those factors... as to restitution.” Thus, defendant’s claim of ineffective counsel in this regard goes directly to the validity of his plea, not to an issue arising after the plea.
2. Issues Arising After Entry of Plea
Dershem’s potential arguable issues concerning restitution arose after the plea was entered and therefore may be raised on appeal. (See Pen. Code, § 1237.5; Cal. Rules of Court, rule 8.304(b)(4)(B).) However, we find those issues meritless.
a. Restitution to Eliases for lost earnings
i. victims’ purported mistake of law
Dershem contends the Eliases lost earnings only because of their mistake of law. Janis testified, “You cannot drive with a broken window or anything broken on a big rig. You have to go through the scales. You have DOT inspections. You have CHP inspections. If anything is broken, you get red tagged which means your truck stops. You don’t move.” She testified that she believed those rules applied to a broken driver’s side window. Defendant states, without citation to any authority, “There are no laws from here to Texas that would make that a true statement.”
Here, even if, we accept, for purposes of argument, that the Eliases were not required to repair the broken driver’s side window in order to legally operate the big rig on an interstate trip, certainly there was a compelling practical reason for immediately undertaking the repairs, even if doing so led to the forfeiture of a remunerative trip. We need only observe that the vandalism occurred in midwinter, on the night of January 28 and early morning of January 29.
ii. Recovery of lost earnings
Citing Penal Code section 1202.4, subd. (f)(3)(D) and (E), Dershem also contends a crime victim may recover lost wages only when the loss was caused by injury or by time spent assisting the police. However, the overriding principle of restitution is that it “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....” (Pen. Code, § 1202.4, subd. (f)(3); italics added.) We conclude that the trial court was not limited to the specific listed examples of lost wages and properly granted reimbursement for lost earnings it determined were incurred as a result of defendants’ vandalism.
iii. Sufficiency of evidence of lost earnings
Dershem also contends there was no evidence the Eliases actually lost a trip, because the dispatch company did not have a load scheduled that month as described by the Eliases. As we have already discusses above, the evidence as believed by the trial court was sufficient to support the restitution order.
b. Joint and several liability for restitution
Dershem argues that his probation report stated that he was to “be responsible for making all restitution in the event [Laird] fails to comply with the restitution order[s],” and he understood the order “to mean I would only have to pay the ordered restitution in the event [Laird] failed to pay, since [Laird’s] did not state he was responsible for payments I did not make. The same probation officer wrote both reports.”
The trial court may order defendants to pay direct victim restitution jointly and severally. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) That is exactly what the trial court did—the court’s August 8, 2008, minute order as to each defendant states that their liability for restitution is joint and several. Dershem has cited no authority that would justify changing that order.
c. Effective assistance of counsel with respect to restitution
Dershem contends he received ineffective assistance of counsel with respect to restitution because his counsel did not “bring[] up the fact that we should not be responsible for the lost wages due to the victims[’] own error....”
A defendant who claims ineffective assistance of counsel must show both that his counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms and that the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Ledesma (1987) 43 Cal.3d 171, 216, 218.) To establish prejudice, the defendant must show that there is a reasonable probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, at p. 694.) As we have noted above, even if the Eliases were not required by law to repair the driver’s side window before undertaking an interstate trip, their choice to do so was amply supported by practical reasons, and there is no basis for assuming the trial court would have changed its decision had Dershem’s counsel raised the issue in the trial court.
C. Independent Review of Record
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record (including the confidential clerk’s transcript filed on November 21, 2008) and have found no arguable issues.
IV. DISPOSITION
The judgment is affirmed.
We concur: KING, J., MILLER, J.