Opinion
D073198
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. PATRICK NICHOLAS LAWRENCE, JR., Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD267103) APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Patrick Nicholas Lawrence of grand theft (Pen. Code, § 487, subd. (a)); vandalism of real or personal property (§ 594, subd. (a)(b)(1)) and failure to appear while on bail (§§ 1320.5, 12022.1, subd. (b)). The jury made findings that the vandalism loss exceeded $400 but found the allegation that the loss exceeded $10,000 was not true.
All further statutory references are to the Penal Code unless otherwise specified.
After the conviction, the court conducted a restitution hearing pursuant to section 1202.4. At the completion of the hearing, the court ordered restitution to the victim in the amount of $57,560.83.
Lawrence appealed his conviction in case People v. Lawrence (D072601). We affirmed the convictions in an unpublished opinion filed April 9, 2018. Lawrence filed a separate appeal following the completion of the restitution hearing. In his appeal, Lawrence contends he was entitled to a jury trial on the amount of restitution as it constitutes additional punishment under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). Lawrence further contends his trial counsel was ineffective under the Sixth Amendment for failing to raise this issue in the trial court.
Lawrence requests this court to take judicial notice of the record in D072601. We grant the request.
First, Lawrence cannot cite any case law for the proposition that restitution constitutes "additional punishment" within the meaning of the holding in Apprendi, supra, 530 U.S. 466. Lawrence candidly cites numerous cases that have rejected his current contention. He argues they were all wrongly decided. We will follow existing case law and again reject the arguments raised here. Since we will address Lawrence's arguments on the merits, it is not necessary to address the claim of ineffective assistance of counsel as we will not apply the doctrine of forfeiture to his current argument.
DISCUSSION
Lawrence contends restitution orders are sentencing increases and thus are subject to the jury trial requirements of Apprendi, supra, 530 U.S. 466 and its progeny. We are not aware of any case which agrees with Lawrence's interpretation of restitution orders in criminal cases. Indeed, the state of the law at this point is squarely against Lawrence's argument. In his opening brief, Lawrence summarizes the state of the law on the subject. He states:
Lawrence does not challenge the amount of restitution set by the trial court, nor does he challenge the sufficiency of the evidence to support such order.
"Several state and federal courts, including California courts, have concluded that direct victim restitution awards fall outside the parameters of the Apprendi jury factfinding requirement. (People v. Wasbotten (2014) 225 Cal.App.4th 306, 308-309 [Apprendi does not apply to direct restitution award for economic losses]; People v. Sweeney (2014) 228 Cal.App.4th 142, 155; People v. Pangan (2013) 213 Cal.App.4th 574, 585-586; People v. Chappelone (2010) 183 Cal.App.4th 1159, 1184; People v. Millard (2009) 175 Cal.App.4th 7, 35-36; United States v. Rosbottom (5th Cir. 2014) 763 F.3d 408, 420; United States v. Green (9th Cir. 2013) 722 F.3d 1146, 1148-1151; United States v. Day (4th Cir. 2012) 700 F.3d 713, 732; United States v. Wolfe (7th Cir. 2012) 701 F.3d 1206, 1216-1218). These cases should not be followed for three reasons: (1) the jury's verdict established Roy's loss was no more than $10,000; (2) characterization of restitution as something other than punishment is not consistent with Southern Union Co. v. United States (2012) 567 U.S. 343; and (3) assuming restitution is not characterized as a criminal penalty, but a civil remedy, then appellant was deprived of his right to a jury trial under article I, section 16 of the California
Constitution. Finally, the California Supreme Court has yet to resolve whether Apprendi applies to victim restitution."
Lawrence argues all of the cited cases were wrongly decided and we should not follow them. We disagree.
In order to bolster his argument, Lawrence cites Southern Union Co. v. United States, supra, 567 U.S. 343 (Southern Union). In that case a corporation, convicted of criminal violations was subject to a fine of up to $50,000 per day for each violation under the statute. The trial court concluded the jury had found 762 days of violations and set the fines accordingly. However, the jury never decided the number of days of violations. The United States Supreme Court found the fines were punishment under the statute, thus Apprendi, supra, 530 U.S. 466 prohibited judicial factfinding to increase the amount of punishment beyond what the jury verdict encompassed. (Southern Union, supra, at pp. 349-350.) Of course, a criminal fine is not in the nature of victim restitution.
Among other state and federal courts, each division of the Fourth District Court of Appeal has addressed Lawrence's basic argument and rejected it. In People v. Millard, supra, 175 Cal.App.4th at pages 35 to 36, this division concluded that neither the federal or state law required a jury trial to determine the amount of restitution in criminal cases. The same conclusion was reached by Division Three of this court in People v. Pangan, supra, 213 Cal.App.4th 574, 585-586. In addition, the court in Pangan rejected the same reliance on Southern Union, supra, 567 U.S. 343, as is presented in this case. Finally, in People v. Wasbotten, supra, 225 Cal.App.4th 306, 308-309, Division Two of our court reached the same conclusion, citing both Millard and Pangan, among other cases.
We agree with the unbroken line of state and federal authority which has rejected the argument that a criminal restitution order must be based on jury findings. Accordingly, we will reject Lawrence's arguments in this case.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. AARON, J.