Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA336131 Craig E. Veals, Judge.
Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant Edgar Pena.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant Ruben Alvarez, Jr.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendants and appellants Edgar Pena (Pena) and Ruben Alvarez, Jr. (Alvarez), appeal from convictions of crimes arising out of the taking of a Cadillac Escalade automobile (Escalade) and its custom wheels, evading a police officer, and the operation of a “chop shop.” On appeal, Pena and Alvarez join in each other’s contentions to the extent they are relevant and beneficial.
“Chop shop” is defined in Vehicle Code section 250, as “premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud, ” with intent to do one or more of the things enumerated in the statute.
Pena contends that the trial court erred in allowing the jury to convict him of receiving stolen property -- the Escalade -- and the unlawful taking or driving the same vehicle. Pena also challenges his convictions of both the grand theft of the Escalade’s wheels (count 1) and receiving the stolen wheels (count 4). Respondent concedes the latter error and we agree. We thus reverse the conviction of receiving the wheels as stolen property (count 4). Otherwise, we affirm Pena’s convictions.
Alvarez contends that it was error to allow the jury to convict him of both operating a chop shop and of receiving stolen property (the Escalade wheels). We agree, and reverse the receiving stolen property conviction (count 4).
Both defendants challenge the order awarding victim restitution as unauthorized, and contend that the amount awarded was an abuse of the trial court’s discretion. They both claim ineffective assistance of counsel in the postverdict restitution hearing. With the exception of the duplicate award of $3,000 for an extended service contract, we reject defendants’ restitution challenge and find that they have not shown prejudice from alleged counsel errors. We therefore strike the duplicate item and otherwise affirm the restitution order.
Shortly after filing his opening brief in this appeal, Alvarez filed a petition for writ of habeas corpus, now pending in this court as In re Ruben Alvarez, Jr., No. B217244. Concurrently with the filing of this opinion, we deny the petition in a separate order.
PROCEDURAL BACKGROUND
1. Pena
Pena was charged with (1) Grand theft of automobile wheels, in violation of Penal Code section 487, subdivision (a); (2) unlawful driving or taking a motor vehicle, in violation of Vehicle Code section 10851, subdivision (a); (3) driving with a willful and wanton disregard for the safety of persons and property while evading a peace officer, in violation of Vehicle Code section 2800.2; (4) receiving stolen property (automobile wheels), in violation of section 496, subdivision (a); and (5) receiving stolen property (Escalade), in violation of section 496d, subdivision (a).
All further statutory references are to the Penal Code unless otherwise stated.
The jury found Pena guilty as charged in counts 1, 2, 4, and 5, and as to count 3, guilty of misdemeanor evading an officer, in violation of Vehicle Code section 2800.1, subdivision (a), a lesser included offense of felony evasion. Pena was sentenced to three years eight months in prison on counts 1 and 2 with a concurrent 365 days in custody on count 3. Sentence in both counts 4 and 5 were stayed pursuant to section 654.
2. Alvarez
Alvarez was charged in count 4 of receiving stolen property (automobile wheels), in violation of section 496, subdivision (a), and in count 6 with operating a chop shop in violation of Vehicle Code section 10801. It was further alleged that Alvarez had sustained a prior robbery conviction in 2005 pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), the “Three Strikes” law.
Charged as codefendants in count 4 were Ruben Alvarez, Sr., Lidia Insurriaga, and Jose I. Carrillo. Ruben Alvarez, Sr., was the sole codefendant charged in count 6. Ruben Alvarez, Sr., Lidia Insurriaga, and Jose I. Carrillo are not parties to this appeal.
The jury found Alvarez guilty as charged. Alvarez admitted his prior strike conviction, and he was sentenced to the middle term of three years in prison, doubled for a total of six years. Count 4, receiving stolen property, was stayed pursuant to section 654.
The abstract of judgment, prepared four months after sentencing, erroneously states that count 4 was the principle term. Because we reverse Alvarez’s conviction of count 4, the superior court will have the opportunity to issue a new abstract that correctly reflects the judgment.
3. Postverdict Proceedings
After hearing evidence, the court determined the victim’s loss to be $49,264, and ordered the defendants jointly and severally to pay restitution in that amount.
Pena and Alvarez timely filed separate notices of appeal.
FACTUAL SUMMARY
On February 7, 2008, at approximately 12:30 p.m., Johan Matus (Matus) parked and locked his Escalade on the street. When Matus returned to claim his vehicle approximately a half hour later, the Escalade was gone. When it was recovered later that day, the tires and expensive 24 inch wheels with chrome rims, along with other parts, were missing.
The same day, eight Los Angeles police officers were conducting undercover surveillance of Lili’s Tire Shop. At approximately 1:00 p.m., Pena drove the Escalade into the shop, and moments later, a GMC pickup truck arrived and was parked next to the Escalade. Pena and Alvarez spoke and then quickly exchanged the wheels and tires of the two vehicles. As they worked, a red Jeep Cherokee was driven in and parked nearby. Pena sprayed lubricant around the Escalade’s door handles and the wheels.
Forensic fingerprint specialist Janine Vontoure testified that she was unable to lift prints from the Escalade’s door handles, because an oily substance had been sprayed on them. Prints were lifted from the interior, but the only match found was to Matus’s prints.
A short time later, Pena left the shop in the Escalade, followed by police officers Ricardo Hernandez and Michael Fung, in their unmarked car. After a distance, Pena stopped, started to get out of the Escalade, but when the two officers parked nearby, Pena got back into the Escalade, and drove away in a fast, evasive and erratic manner. The officers gave chase and observed Pena commit numerous traffic violations before being blocked at a traffic light.
A later search of the shop yielded several other expensive aftermarket chrome wheels hidden under a camper shell. When the Escalade was recovered, the lock had been “punched” with a screwdriver to disable it, and wires were hanging from the steering column, suggesting that it had been “hotwired.” In addition, the defendants had not replaced all the necessary lug nuts on the wheels of the Escalade. Detective Richard Ramirez testified that a legitimate tire store would not change wheels without safely securing all lug nuts. Detective Ramirez opined that the Escalade was a “roll-away, ” a vehicle taken to a chop shop for the purpose of stealing the wheels. The desired wheels were then quickly replaced with low-end wheels, with just enough lug nuts to allow them to roll or drive the vehicle to another location, where thieves would abandon it.
While he watched the shop, Detective Ramirez did not see anyone write up a work order or carry a clipboard for that purpose, and no money or receipts changed hands. His observations that morning, along with information obtained during the later search, led him to believe that the defendants were operating Lili’s Tire Shop as a chop shop.
DISCUSSION
I. Dual Conviction and Punishment (Pena: Counts 1, 2, 4, and 5)
A. Counts 2 and 5: Convictions of Both Receiving and Driving Stolen Vehicle Were Proper
Pena contends that the trial court erred in allowing the jury to convict him of both section 496, receiving stolen property -- the Escalade (count 5) -- and Vehicle Code section 10851, unlawful taking or driving the same property (count 2). Pena argues that the conviction must be reversed, because there was evidence of both theft and driving, the verdict form described the crime as unlawful driving or taking a vehicle, and the jury made no special findings, making it impossible to determine which part of Vehicle Code section 10851 the jury convicted him of violating.
Pena also contends that it is impossible to know under which part of Vehicle Code section 10851 the jury convicted him, because the trial court did not instruct the jury that it could not convict Pena of unlawfully taking the Escalade and of receiving it. We leave this issue of instructional error to our later discussion in part III, infra.
We agree that a person may not be convicted of receiving stolen property and of the theft of the same property. “‘[A] thief cannot receive from himself.’ [Citations.]” (People v. Ceja (2010) 49 Cal.4th 1, 6 (Ceja).) As Pena acknowledges, however, one may be convicted of both receiving stolen property and unlawfully driving the same stolen vehicle. “[A] defendant convicted under [Vehicle Code] section 10851(a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted under section 496(a) of receiving the same vehicle as stolen property. On the other hand, unlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete (... posttheft driving). Therefore, a conviction under section 10851(a) for posttheft driving is not a theft conviction and does not preclude a conviction under section 496(a) for receiving the same vehicle as stolen property.” (People v. Garza (2005) 35 Cal.4th 866, 871 (Garza).)
The thief may be convicted of receiving stolen property and driving the vehicle in cases where, after the theft is complete, there is a “divorcement” between the two parts of Vehicle Code section 10851, such as when the thief has reached a place of temporary safety, or when the unlawful driving is no longer part of a “‘“continuous journey away from the locus of the theft.”’ [Citation.]” (Garza, supra, 35 Cal.4th at pp. 880-881, quoting People v. Strong (1994) 30 Cal.App.4th 366, 375.) Here there were two parts to Pena’s driving. Within 30 minutes of the theft of the Escalade, Pena drove it into the chop shop to have parts removed. Once that was done, Pena then drove the vehicle away in order to abandon it. The drive to the shop could reasonably be interpreted as part of the journey away from the site of the theft. However, the theft had long been accomplished by the time Pena drove away from the shop with the intent to abandon the vehicle.
Had there been no direct evidence of the driving pattern, the ambiguous verdict form and the absence of special findings may have made it impossible to determine whether the defendant was convicted of driving or of theft of the Escalade. (See People v. Jaramillo (1976) 16 Cal.3d 752, 757-759.) Here, there was no evidence that Pena stole the Escalade. Thus, because there was direct evidence of the nontheft driving and no evidence that Pena was the thief, “no reasonable juror could have found that defendant took but did not drive the vehicle. We are therefore unconcerned with whether the jury ‘may have’ also found that defendant stole the vehicle in question.” (People v. Cratty (1999) 77 Cal.App.4th 98, 101.)
We conclude that Pena was convicted of unlawfully driving the Escalade in violation of Vehicle Code section 10851, not of taking it. Thus, the conviction of receiving stolen property was not a prohibited dual conviction. (See Garza, supra, 35 Cal.4th at p. 871.)
B. Counts 1 and 4: Convictions of the Theft and Receiving Stolen Wheels Were Improper
Pena also challenges his convictions of both the grand theft of the Escalade’s wheels (count 1) and receiving the stolen wheels (count 4). Respondent concedes the error. When a defendant has been convicted of the theft and receiving the same property, the receiving conviction must be reversed. (Ceja, supra, 49 Cal.4th at pp. 6, 10.) Because count 4 will be reversed, we do not reach Pena’s alternative contention that count 4 must be reversed due to his conviction of count 2.
C. Punishment on Both Counts 1 and 2 was Proper
Pena contends that counts 1 and 2 are duplicative of each other and must be reversed. He argues that the offense in count 2 was a violation of the taking provision of Vehicle Code section 10851, and concludes that he cannot be convicted of both the theft of the Escalade and of its parts -- the wheels -- as charged in count 1. We have already determined that Pena was not convicted of the theft of the Escalade, but of unlawfully driving the Escalade. The theft of its wheels was not duplicative of unlawfully driving it.
In the alternative, Pena contends that section 654 prohibits punishment for both offenses. Section 654 provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).) It prohibits punishment for two crimes arising from a single, indivisible course of conduct. (See People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
Pena relies upon authorities holding that the taking provision of Vehicle Code section 10851 proscribes the same conduct as grand theft of an automobile under former section 487. (See People v. Malamut (1971) 16 Cal.App.3d 237, 243; People v. Pater (1968) 267 Cal.App.2d 921, 923-925; see now, § 487, subd. (d)(1).) Had the jury convicted Pena of stealing the Escalade, we would agree that the wheels were stolen by means of the same act at the same time, thus, in a single, indivisible course of conduct. However, Pena was not convicted of stealing the Escalade, but of driving it without authorization, and the theft of the wheels was a separate act. (See Garza, supra, 35 Cal.4th at p. 876; People v. Jaramillo, supra, 16 Cal.3d at p. 759, fn. 6.)
II. Instructional Error, If Any, Was Harmless (Pena)
Pena contends that the trial court was required sua sponte to instruct the jury to decide whether he violated Vehicle Code section 10851 by unlawfully taking the Escalade or by unlawfully driving it, and that finding him guilty of theft precluded a conviction of receiving the same property. He contends that the trial court’s failure to do so resulted in a denial of federal due process, and that we should apply the harmless error standard of Chapman v. California (1967) 386 U.S. 18, which governs when error results in the violation of federal constitutional rights.
We agree that it would be error to fail to instruct the jury that it may not convict a defendant of the theft of and receiving the same stolen property. (Garza, supra, 35 Cal.4th at p. 881; People v. Strong, supra, 30 Cal.App.4th at p. 376.) The California Supreme Court recently observed that such instructions were the prescribed practice in the federal courts, and suggested that the practice be followed by California courts. (Ceja, supra, 49 Cal.4th at p. 10, citing United States v. Gaddis (1976) 424 U.S. 544, 550.) “‘Where a defendant is charged with stealing and receiving the same property, the court should instruct the jury to determine the defendant’s guilt on the theft count first, and if it finds the defendant guilty of the theft, to return the receiving verdict unsigned. [Citations.]’” (Ceja, at p. 10.)
Here however, there was no evidence that Pena actually stole the Escalade. Indeed, as in People v. Austell (1990) 223 Cal.App.3d 1249, 1252, the prosecutor made clear that the People did not seek a conviction under the taking provision of Vehicle Code section 10851, but only under the unauthorized driving provision.
In closing argument, the prosecutor told the jury that the evidence showing that the Escalade had been stolen -- the cracked steering column and the punched lock -- was not meant to show that Pena took the vehicle. He argued: “[W]e don’t have to prove he took it. He’s not being charged with grand thief [sic] of the cars. He is being charged with grand theft of the wheels, not grand theft of the car.... I don’t have to prove he did. I just have to prove that he drove it and knew it was stolen.” Later, the prosecutor said, “Even if Mr. Pena didn’t take it, assuming somebody gave it to Mr. Pena, just... with no keys..., with a broken drivers [sic] column on it. Is there any doubt that Mr. Pena knew that this car was stolen? There is no doubt... that Mr. Pena was the driver of this car.”
In an effort to show that the People argued both theories, Pena points to other parts of the prosecutor’s argument. However, in the cited excerpts the prosecutor merely argued that someone -- “a person” -- stole the Escalade.
It is apparent that Pena’s trial counsel also considered count 2 to be based upon the driving aspect of Vehicle Code section 10851 as in summation counsel did not address any evidence concerning the theft of the Escalade. After describing Pena’s erratic driving to show that it did not demonstrate a willful or wanton disregard for life, counsel argued, “so the evidence in count... two... I can view as overwhelming.” Thus we conclude that there was no instructional error by the trial court.
If however it was error by the trial court not to give the jury such an instruction, it would be harmless under the Watson standard. (Garza, supra, 35 Cal.4th at pp. 881-882.) Applying the Watson test, we conclude that it was not reasonably probable that such an instructed jury would have found Pena guilty of Vehicle Code section 10851 on the basis of the theft, rather than driving, or that it would have reached a result more favorable to Pena by not convicting him of violating both Vehicle Code section 10851, subdivision (a) and section 496, subdivision (a). (See Watson, supra, 46 Cal.2d at p. 836.) As Pena was not convicted of having stolen the Escalade, but of unlawfully driving it, reversal is not indicated. (See People v. Allen (1999) 21 Cal.4th 846, 857.)
People v. Watson (1956) 46 Cal.2d 818 (Watson).
III. No Unanimity Instruction Was Required (Pena)
Pena contends that the court’s failure to instruct the jury that it must unanimously agree on which act of Vehicle Code section 10851, taking or driving, it based the conviction of count 2 was error.
In criminal cases, a jury’s verdict must be unanimous. (Cal. Const., art. I, § 16.) “‘[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed... that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.’ [Citation.]” (People v. Thompson (1995) 36 Cal.App.4th 843, 850.)
The instruction is required in such cases only where the prosecution does not make an election. (People v. Mayer (2003) 108 Cal.App.4th 403, 418.) As Pena recognizes, the election may be in the form of the prosecutor’s statements and arguments to the jury. (Id. at pp. 418-419.) Here, the prosecution clearly made an election to prove the unauthorized driving provision of Vehicle Code section 10851, not the taking provision, as we have discussed at length previously. Thus, no unanimity instruction was required.
IV. Dual Conviction (Alvarez: Counts 4 and 6)
A. Receiving Stolen Property is Included in Operating a Chop Shop
Alvarez contends that it was error to allow the jury to convict him of operating a chop shop and of receiving stolen property (the Escalade wheels). He contends that all the elements of receiving stolen property are included in those of operating a chop shop. We agree, and reverse the receiving stolen property conviction (count 4).
Alvarez invokes the judicially created exception to the rule of section 954, which provides that “a single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.’ [Citations.]” (People v. Montoya (2004) 33 Cal.4th 1031, 1034 (Montoya), quoting § 954, italics omitted.) The exception prohibits multiple convictions based on necessarily included offenses. (Montoya, at p. 1034.)
“In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether ‘“‘all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.’”’ [Citation.] In other words, ‘if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ [Citation.]” (Montoya, supra, 33 Cal.4th at p. 1034.) “In deciding whether multiple conviction [of charged offenses] is proper, a court should consider only the statutory elements.... ‘An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.’ [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1229 (Reed).)
Vehicle Code section 250 defines a “‘chop shop’” as “premises where any person has been engaged in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud, ” in order to do any of the acts enumerated in subdivisions (a) and (b). Receiving stolen property consists of buying or receiving “any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained.” (§ 496, subd. (a).)
Alvarez relies on two cases which held that receiving stolen property was a lesser included offense of operating a chop shop. (See People v. Sanchez (2003) 113 Cal.App.4th 325, 333 (Sanchez); People v. King (2000) 81 Cal.App.4th 472, 475-476 (King).)
The two cases also considered the facts alleged in the accusatory pleadings. (See Sanchez, supra, 113 Cal.App.4th at pp. 333-334; King, supra, 81 Cal.App.4th at pp. 475-476.) The accusatory pleading test has since been repudiated. (Reed, supra, 38 Cal.4th at p. 1229.) Although Alvarez recognizes the requirement of using only the elements test, he suggests that an analysis of the evidence presented in this case shows that receiving stolen property was necessarily included in his operation of a chop shop. We may not consider the evidence adduced at trial in determining whether one offense necessarily is included within another. (People v. Ortega (1998) 19 Cal.4th 686, 698, overruled on another point in Reed, supra, 38 Cal.4th at pp. 1228-1229, 1231.)
Respondent counters with People v. Strohman (2000) 84 Cal.App.4th 1313 (Strohman), which held that receiving stolen property was not a lesser included offense of operating a chop shop. The Strohman court explained “that for property to fall within the definition of operating a chop shop, it must be ‘illegally obtained by theft, fraud, or conspiracy to defraud....’” The court held that section 496 applied only to property obtained by theft or extortion, not property obtained by fraud. (Strohman, supra, at p. 1316.) Thus, the court concluded, it was possible to operate a chop shop without receiving stolen property. (Ibid.)
Although the Strohman court stated that both the elements test and the accusatory pleading test were appropriate, it relied only upon the statutory elements set forth in Vehicle Code section 250, which defines a chop shop, and section 496, receiving stolen property. (Strohman, supra, 84 Cal.App.4th at p. 1316; see People v. Reed, supra, 38 Cal.4th at p. 1228.)
Alvarez acknowledges the conflict among the appellate courts, and suggests that we reject the reasoning of Strohman, like the court in Sanchez, which observed that the “Strohman court failed to appreciate that fraud is a species of theft.” (Sanchez, supra, 113 Cal.App.4th at p. 333.) We agree with this observation. Theft by fraud is a form of theft enumerated in section 484, subdivision (a), which defines theft. (People v. Ashley (1954) 42 Cal.2d 246, 258-259.)
The Sanchez court pointed out that all forms of theft are enumerated in section 484, including the false or fraudulent representation or pretense by which one defrauds any other person of property. (Sanchez, supra, 113 Cal.App.4th at p.333; see also § 532.) The crime of receiving stolen property is defined as buying or receiving “any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained....” (§ 496, subd. (a), italics added.) We observe that in its analysis, the Strohman court omitted the statutory language italicized above when it concluded that section 496 does not include receiving property obtained by fraud. (Strohman, supra, 84 Cal.App.4th at p. 1316.)
B. Reversal of Receiving Stolen Property Conviction Is Required
Because one cannot operate a chop shop without altering or storing any tainted motor vehicle or part, it follows that the chop shop operator must first receive those motor vehicles or parts. Because we construe section 484 as providing that fraud is committed in a “manner constituting theft” within the meaning of section 496, subdivision (a), we conclude that section 496 is violated by receiving parts and automobiles obtained by means of all forms of theft. We further conclude, as the Sanchez court did, that a defendant necessarily violates section 496 in operating a chop shop. (Sanchez, supra, 113 Cal.App.4th at p. 333.)
The appropriate remedy is to reverse the lesser included offense of receiving stolen property. (See People v. Cole (1982) 31 Cal.3d 568, 582.)
V. Joint and Several Restitution Award was Authorized (Alvarez)
Alvarez contends that because he was not charged with or convicted of stealing the Escalade, either as a principal or accessory, the trial court was not authorized to require him to pay victim restitution. Further, he contends that a joint and several award was improper, arguing that only Pena can be assessed for the owner’s losses, because the evidence did not show that he participated with Pena in the conduct that damaged the Escalade.
“Article I, section 28, subdivision (b) of the California Constitution guarantees ‘all persons who suffer losses as a result of criminal activity... the right to restitution from the persons convicted of the crimes for losses they suffer.’ This language discloses a clear intent: ‘every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss.’ [Citation.]” (People v. Lai (2006) 138 Cal.App.4th 1227, 1246-1247, italics & fn. omitted.) “In keeping with the ‘unequivocal intention’ that victim restitution be made, statutory provisions implementing the constitutional directive have been broadly and liberally construed. [Citations.]” (People v. Lyon (1996) 49 Cal.App.4th 1521, 1525.) When two or more defendants are responsible for the victim’s loss, the court may award a joint and several obligation which prevents a double recovery by the application of payment by one defendant against the whole debt. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.)
Alvarez relies upon the rule that when a court imposes a prison sentence (rather than probation), the scope of victim restitution is limited to losses caused by defendant’s criminal activity. (§ 1202.4; People v. Woods (2008) 161 Cal.App.4th 1045, 1049-1050; see People v. Lai, supra, 138 Cal.App.4th at p. 1249.) However, the awards in those cases were reversed due to the lack of causal connection between the crime and the victim’s loss. Nothing in the authorities cited by Alvarez precludes restitution for losses caused by the operation of a chop shop.
Here, the stealing of parts at the chop shop (of which receiving stolen property was an included element) resulted in a loss to Matus. (Sanchez, supra, 113 Cal.App.4th at p. 333.) We find no error in ordering a joint and several restitution award for all damage to the Escalade.
VI. The Amount of the Restitution Award (Pena and Alvarez)
A. Summary of Contentions
Both Pena and Alvarez contend that the victim restitution award of $49,264 was unsupported by substantial evidence, and an abuse of discretion. Pena argues that Matus was not the victim, and thus not entitled to restitution. Both defendants argue that restitution in excess of the replacement value of the Escalade was not authorized by law, and that $3,000 for a service contract and the $100 per day car rental were excessive.
B. Standard of Review, Applicable Law, and Relevant Facts
We review the trial court’s restitution order for abuse of discretion. So long as the trial court chose a method for calculating the amount of restitution that is rationally designed to determine the victim’s economic loss, and the amount does not fall “‘“outside the bounds of reason” under the applicable law and the relevant facts, ’” the court’s determination will be upheld. (People v. Giordano (2007) 42 Cal.4th 644, 663-664.)
“[I]n 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.... [¶]... [¶] [T]he amount of restitution... shall not be affected by the indemnification... rights of any third party.... [¶] To the extent possible, the restitution order... 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).) Reimbursable losses include, but are not limited to, the value of the stolen or damaged property, determined by its replacement cost or cost of repair. (Id. at subd. (f)(3)(A).) “The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” (Id. at subd. (g) [previously subd. (f)].)
At the restitution hearing, Matus testified to his losses. He bought the Escalade on credit in November 2006, and when it was stolen in February 2008, it was worth $21,000, although the amount remaining on the financing agreement was $37,264. Matus rented a car for 90 days at $100 per day, for a total of $9,000. In addition, he had paid $3,000 for an extended service contract on the Escalade.
The Escalade was jointly registered to Matus and his aunt, Cecilia Paz (Paz). The legal owner was Westcom Credit Union. Paz actually purchased the Escalade and obtained the loan for it because her credit was better. Although Matus’s name does not appear on the purchase contract, he made the payments to the credit union under a verbal contract with his aunt.
The total restitution award was $49,264. This figure included the balance owing on the financing contract, which was $37,264, as well as $9,000 for a rental car and $3,000 for the extended service contract.
C. Matus was the Victim Entitled to Restitution
Although he concedes that Matus was the direct victim of the crimes, Pena contends that because Matus was not the owner of the Escalade, he was not entitled to restitution. We disagree. The evidence established that Matus owned the vehicle. Documents supplied to defense counsel showed that Matus was one of two registered owners. Further, although his name was not on the financing contract, Matus was obligated to his aunt to make payments, and was liable for the full balance. It was thus Matus who suffered the loss, and no abuse of discretion has been shown.
D. Restitution was not Limited to Replacement Value
Both Pena and Alvarez contend that restitution for the loss of the Escalade was limited to its replacement value at the time of theft, $21,000. The plain language of the statute states otherwise: “To the extent possible, the restitution order... shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss..., including, but not limited to... [¶]... [t]he value of stolen or damaged property.” (§ 1202.4, subd. (f)(3)(A), italics added.) The statute defines the value of stolen or damaged property as “the replacement cost of like property, or the actual cost of repairing the property when repair is possible, ” but does not limit restitution to the value of the property. (Ibid.)
Other than People v. Yanez (1995) 38 Cal.App.4th 1622 (Yanez), which we discuss below, the authorities upon which defendants rely do not hold otherwise. (See People v. Chappelone (2010) 183 Cal.App.4th 1159, 1173-1174 [improper to award retail value for unsalable items with no value]; People v. Bergin (2008) 167 Cal.App.4th 1166, 1170-1171 [victim’s medical expenses measured by amounts accepted by medical providers as payment in full]; In re Anthony M. (2007) 156 Cal.App.4th 1010, 1017-1019 [medical expenses incurred or paid recoverable, but restitution award premature until Medi-Cal made full payment]; People v. Thygesen (1999) 69 Cal.App.4th 988, 993-994, 996 (Thygesen) [replacement value and lost rental value both proper, but award not supported by substantial evidence]; People v. Vournazos (1988) 198 Cal.App.3d 948, 957-959 [value not supported by substantial evidence].)
In none of the cited cases, including Yanez, was the victim obligated to pay back a loan on a vehicle which was a total loss. In Yanez, the appellate court held that the trial court must award only the replacement value or cost of repair of the victim’s damaged vehicle. In reversing an award for the cost of repair that exceeded the value of the vehicle, the court applied the civil measure of tort damages. (Yanez, supra, 38 Cal.App.4th pp. 1625-1626.) Yanez has been criticized for so doing. (See People v. Stanley (2010) 187 Cal.App.4th 120, 126; In re Dina V. (2007) 151 Cal.App.4th 486, 488-489.) “To limit the amount of restitution to the replacement cost, because that would be the manner of determining damages in a civil case, is neither required nor logical [where]... [l]imiting the amount of restitution to the replacement cost would not make the victim whole.” (In re Dina V., supra, at p. 489, fn. omitted.)
Both defendants quote the following dictum in Thygesen: “[T]he purpose of the restitution statute is to make that victim whole, not to give a windfall. [The victim] is not entitled to replace a used mixer with a brand new one at appellant’s expense, absent some extraordinary facts. If [the victim] were a car rental agency that lost a 1995 Ford Taurus, it would be entitled to the replacement value of a similar 1995 Ford Taurus, not a 1999 model.” (Thygesen, supra, 69 Cal.App.4th at p. 995.) As respondent notes, neither the imaginary Ford Taurus nor the rental equipment at issue in Thygesen was subject to a financing agreement.
We agree. Proposition 8 established a constitutional right of crime victims to receive restitution by adding article I, section 28, subdivision (b) to the California Constitution. This mandate must be construed “‘“liberally and on broad general lines, so that it may accomplish in full measure the objects of its establishment and so carry out the great principles of government.”’ [Citations.]” (People v. Giordano, supra, 42 Cal.4th at p. 655.) To engraft civil law principles on these choices would further burden victims, and it would be inconsistent with the broad construction that must be accorded by the courts to Proposition 8 and its implementing statutes. (People v. Stanley, supra, 187 Cal.App.4th at p.126.)
We find nothing in defendants’ authorities to support their assertion that Matus will have a windfall unless the court denies reimbursement for the difference between the current value of the Escalade and his obligation to pay the balance owed. Indeed, Matus would be left in debt, not whole, and defendants would be accorded the windfall. Accordingly, we conclude that the trial court’s award of Matus’s remaining obligation did not fall outside the bounds of reason, and thus was not an abuse of discretion. (See People v. Giordano, supra, 42 Cal.4th at pp. 663-664.)
E. $3,000 for the Service Contract resulted in a Double Recovery
Pena and Alvarez both contend that the award of $3,000 for the extended service contract that was financed along with the Escalade was an abuse of discretion. Defendants challenge the item for several reasons. They contend that Matus did not make clear whether the $3,000 represented the price of the service contract or the aftermarket wheels, and because the wheels were returned, he suffered no loss due to their theft. Defendants also contend that the court should not have assumed that the amount paid for an extended service contract would not be reimbursed, or that Matus’s insurer would not pay the balance due on the contract, including the $3,000.
In addition, Pena points out that Matus was awarded the balance due on the financing agreement, and the $3,000 was part of that balance. He also renews his contention that Matus was not the victim, because he was not directly liable to the lender to pay the balance, although he was obligated to his aunt to do so.
We reject all contentions except the double award pointed out by Pena. First, we have already rejected Pena’s contention that Matus was not the victim. The $3,000 item was not for the wheels. It was clear in Matus’s testimony that he misunderstood the question regarding the $3,000, but when further questioned, he corrected himself, testifying that it was for the extended service contract.
Next, we reject defendants’ contention that the court assumed that the amount paid for an extended service contract would not be reimbursed, or that Matus’s insurer would not pay the balance due on the contract, including the $3,000. The court did not have to assume that the amount paid for an extended service contract would not be reimbursed. Matus testified that he did not expect reimbursement, other than reimbursement from his “gap” insurer for the difference between the market value of the Escalade and the balance owing on the loan. The court correctly ruled that the expectation of insurance proceeds was irrelevant. (See People v. Hamilton (2003) 114 Cal.App.4th 932, 939-940.) “Determination of the amount of restitution ordered... shall not be affected by the indemnification or subrogation rights of any third party.” (§ 1202.4, subd. (f)(2).) Defendants were not entitled to an offset due to the victim’s insurance recovery. (See People v. Birkett (1999) 21 Cal.4th 226, 246-248 & fns. 19, 21; People v. Hamilton, supra, at pp. 939-940; People v. Hove (1999) 76 Cal.App.4th 1266, 1270.)
We agree that the $3,000 was part of the loan balance and should not have been separately awarded. The financing agreement shows that the $3,000 for the service contract was financed along with the Escalade; it was thus part of the balance owing. The court awarded both the cost of the service contract and the balance due on the financing contract at the time of the theft, $37,264.
Although the court has wide discretion in fixing the amount of restitution, in order to make the victim whole, it may not award more than necessary for that purpose. (People v. Chappelone, supra, 183 Cal.App.4th 1172-1173.) As the $3,000 which was calculated separately and in addition to the balance owing on the automobile loan creates a duplicate recovery, we shall strike this unauthorized portion of the award. (Cf. People v. Percelle (2005) 126 Cal.App.4th 164, 184.)
F. Car Rental: No Abuse of Discretion
Defendants contend that the $9,000 award for Matus’s car rental expenses was not supported by substantial evidence, and that the trial court should have required documentary evidence to support the claim. They argue that $100 per day would pay for a Lotus or Ferrari, but was “patently outrageous” for a Kia. They conclude that Matus’s testimony that he paid $100 per day to rent a Kia was inherently incredible.
Defendants also contend that the trial court abused its discretion by relying upon extrajudicial evidence in the form of its own speculation that the cost of the rental was high due to Matus’s poor credit. When Matus testified that his aunt had obtained the car loan because his credit was poor, the court commented, “In fact, that would explain also the rental charge. You pay more if you don’t have creditworthiness that they require or at least for threshold amount.” However, when one of the defense attorneys argued that $100 per day was unreasonable, the court said, “[counsel] told me I can’t derive anything from my personal experience, so I have no knowledge one way or the other. If [Matus] says it was a Kia for $100, it’s a Kia.” It is thus apparent that the court relied on Matus’s testimony, not its own speculation.
The trial court was entitled to rely on Matus’s testimony. (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1545.) The victim’s testimony was sufficient to satisfy the People’s burden to establish the amount of the loss and shift the burden to the defendants to refute the claim. (See People v. Millard (2009) 175 Cal.App.4th 7, 30.) Defendants failed to do so.
Alvarez contends that Matus had a duty to mitigate his loss by finding a more reasonable rate. He fails, however, to support this contention with any authority. Mitigation of damages may be required in a tort case, depending on the facts, but victim restitution is not restricted to the measure of damages relevant to civil cases. (See In re Dina V., supra, 151 Cal.App.4th at p. 489.) Victim restitution is calculated by any rationally designed method to determine the victim’s economic loss. (People v. Giordano, supra, 42 Cal.4th at pp. 663-664.)
However, Matus testified that he tried to find a less expensive rental, but he needed a car that would fit his needs, and was unable to negotiate a better rate. We agree with respondent that the trial court could reasonably infer that a sport utility vehicle, similar to the Escalade, would be necessary to meet Matus’s needs. We have no basis in the record to find it inherently incredible that the daily rate for a sport utility vehicle, along with insurance coverage and tax could amount to $100 per day. We thus find no abuse of discretion.
VII. No Due Process Violation
Alvarez contends that his right to due process was violated because he was not given notice of the categories or amount of the victim’s losses. The record does not show that there was a failure of notice of the amounts claimed or the categories of losses. We do not infer inadequate notice from a silent record. (People v. Baker (1974) 38 Cal.App.3d 625, 629.)
Further, the record indicates that Alvarez’s counsel did, in fact, have information about the claimed losses. Two of the other defense attorneys had notice of the amounts claimed, and had documents regarding the losses which they placed into evidence. Counsel for Alvarez did not indicate that he had not seen the exhibits, and did not object on the ground of lack of notice or seek a continuance. Under such circumstances, we may assume that he was not surprised by the amounts claimed, and thus had sufficient notice. (See People v. Phillips (1994) 25 Cal.App.4th 62, 75.)
VIII. Assistance of Counsel -- No Prejudice is Shown
Defendants assert ineffective assistance of counsel in the restitution hearing. Alvarez contends that counsel was ineffective because he did not object to lack of notice of the claimed restitution, failed to prepare adequately for the restitution hearing, and failed to present evidence to rebut the amounts claimed or request a continuance to obtain such evidence.
Pena contends that his counsel failed to prepare for the restitution hearing, failed to assert that Matus was not the victim, and failed to object to the court’s method of valuation, present defense evidence on that issue, or request a continuance to obtain evidence. In addition, Pena contends that his counsel should have objected to the court’s reliance on extrajudicial evidence and more fully cross-examined Matus.
The Sixth Amendment right to assistance of counsel includes the right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 674-686 (Strickland); see also Cal. Const., art. I, § 15.) “Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 (Rodrigues).)
“Moreover, ‘“a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” [Citation.]’ [Citation.]” (Rodrigues, supra, 8 Cal.4th at p. 1126; see also Strickland, supra, 466 U.S. at pp. 688, 694.) Defendants must affirmatively prove prejudice by demonstrating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694.)
Neither defendant provides any analysis to show how the outcome would have been different had counsel not erred as claimed. Pena’s prejudice argument is that counsel’s misfeasance prevented him from effectively challenging the restitution award by objecting to or refuting the evidence showing that Matus was the victim and that his losses amounted to $49,264. Pena also contends that he was prejudiced by counsel’s failure to raise the issues of replacement value as the measure of damages and lack of notice, because it deprived him of appellate review of those issues.
Alvarez makes no prejudice argument, but joins in all of Pena’s arguments that might inure to his benefit. In his reply brief, however, Alvarez offers the following conclusion: “Had counsel been aware of the law and provided rebuttal evidence, it is highly likely the trial court would have entered a legally correct restitution award supported by substantial evidence in an amount significantly less than that awarded.”
Because we strike $3,000 from the judgment, counsel’s failure to object to the double award was harmless. Because we have rejected Pena’s contention that Matus was not the victim, a better result was not probable, even if his attorney had raised the issue. We have also rejected defendants’ contention that restitution must be limited to replacement value; thus, raising the issue was unlikely to have changed the result. Finally, we have rejected the contention that the victim was required to mitigate his damages by renting a less expensive automobile; thus, defendants have not shown that a different result was probable as to the rental costs. Because defendants have not shown that the court was reasonably likely to have ordered a lesser amount of restitution absent the alleged errors by counsel, they have not met their burden to establish prejudice. (See People v. Foster (1993) 14 Cal.App.4th 939, 947.)
Because defendants have not shown prejudice, their claims of ineffective assistance of counsel fail, and we need not reach their contention that counsel’s representation fell below an objective standard of reasonableness. (See Rodrigues, supra, 8 Cal.4th at p. 1126.)
We observe, however, that there is no basis for reversal for the additional reason that the record does not demonstrate counsel’s acts, omissions, or reasoning. Under such circumstances a claim of ineffective assistance of counsel is more appropriately raised in a petition for writ of habeas corpus. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Alvarez has filed a petition for writ of habeas corpus, and our order denying it has been filed concurrently with this opinion.
DISPOSITION
The duplicate award of $3,000, calculated separately and in addition to the balance owing on the automobile loan, is stricken from the restitution award, leaving intact the items totaling $46,264. The convictions of count 4 are reversed as to both defendants. In all other respects, the judgments and restitution order, as modified, are affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
We concur: BOREN, P. J.DOI TODD, J.