Opinion
C081717
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA SANDERS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F07113)
Appointed counsel for defendant Joshua Sanders has filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we will remand the matter for a restitution hearing. The judgment is affirmed.
I. BACKGROUND
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
Defendant is a former employee of A-1 Chimney. When defendant began working for A-1 Chimney he was trained by Jeremy Serrano. On October 30, 2013, defendant sent a text message to Serrano, asking him if he knew what time A-1 Chimney employees would be starting work the next day. Although Serrano knew that defendant had been fired from A-1 Chimney less than a month earlier, he told defendant that employees would be starting work at 7:00 a.m.
Around 6:20 a.m. on October 31, 2013, Richard Lyman, the assistant manager at A-1 Chimney, was at work. He heard a knock on the door and opened it. Two men rushed in with a gun, took Lyman's cell phone off of the front counter, and demanded the money box. Although defendant was wearing glasses and fake teeth, Lyman recognized him. According to Lyman, defendant held a gun to his face and pushed him to the ground prior to demanding the money box.
Lyman retrieved the key for the safe and opened it. Defendant took the money box out of the safe and then he and the other individual pushed Lyman into a bathroom and shut the door. Shortly after the men left A-1 Chimney, Lyman called 911.
On the morning of the robbery, Justin Watkins was fueling trucks at CTS Advantage Logistics, located next door to A-1 Chimney. He observed two men run out of A-1 Chimney, get into a red SUV, and drive away. A videotape from CTS Advantage Logistics showed an SUV enter the area near A-1 Chimney and park at 6:22 a.m. on October 31, 2013. Watkins testified that the SUV on the videotape was the same SUV he observed drive away from A-1 Chimney.
During the police investigation into the robbery, Lyman identified defendant from a photographic lineup. A detective subsequently went to an address associated with defendant and found a red Chevy Captiva SUV parked in the driveway. A forensic examination of the vehicle revealed that defendant's fingerprints were located on the driver side door of the SUV and on several items found in the SUV. A search of the SUV disclosed a rental agreement with defendant's name on it. When Watkins was shown photographs of the SUV, he said that the vehicle was very similar to the one he observed on the morning of the robbery.
The police did not find a gun inside the SUV or inside the residence where the SUV was located. At trial, defense counsel elicited testimony from a police detective that there are replica guns, such as BB guns and airsoft guns, which look like real firearms but are not actually considered to be real firearms. The detective testified that robberies are sometimes committed with replica guns, and that it can be difficult to distinguish between a replica gun and a real firearm. On cross-examination, Lyman admitted that he did not have any experience with firearms but insisted he could tell that the gun used by defendant was a real firearm. During closing argument, defense counsel argued that the prosecution had not met its burden to show the robbery was committed with a real firearm.
In April 2014, defendant was charged by information with second degree robbery. (Pen. Code, § 211.) It was also alleged that defendant personally used a firearm during the commission of the robbery. (§ 12022.53, subd. (b).)
Undesignated statutory references are to the Penal Code. --------
A jury found defendant guilty of second degree robbery, but found untrue the allegation he personally used a firearm during the commission of the offense. The trial court sentenced defendant to the upper term of five years in prison.
Defendant filed a timely notice of appeal.
II. DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. To date, defendant has not filed a supplemental brief. Having undertaken an examination of the entire record, we find one error that could result in a disposition more favorable to defendant.
Prior to sentencing, the probation officer prepared a report indicating that Lyman had suffered the loss of his Apple iPhone and requested victim restitution in the amount of $400. The probation officer requested that victim restitution be set at $400 but failed to include this request in the recommendation section of the report. At sentencing, the trial court did not orally impose victim restitution. However, the abstract of judgment reflects that victim restitution was awarded to Lyman in the amount of $400.
Article I, section 28, subdivision (b)(13)(B), of the California Constitution provides: "Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss." Victim restitution for economic loss is mandatory (§ 1202.4, subd. (a)(1)) and the court must order full victim restitution "in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court." (§ 1202.4, subd. (f).)
In this case, the trial court failed to orally impose victim restitution. This omission was constitutionally unlawful and could not be forfeited by the People. (People v. Smith (2001) 24 Cal.4th 849, 852 [unauthorized sentence not subject to forfeiture rule]; see § 1202.46 ["a victim, the district attorney, or a court on its own motion" may request "correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine pursuant to Section 1202.4"].) The clerk could not use the abstract of judgment to supply a restitution order that was not part of the trial court's oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [oral judgment controls over abstract and minutes]; People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [clerk cannot supplement the judgment through a minute order or abstract].) Accordingly, we will direct the trial court to delete the reference to an award of victim restitution in the abstract of judgment and remand the matter for a restitution hearing.
III. DISPOSITION
The trial court is directed to delete the reference to an award of victim restitution in the abstract of judgment. The trial court shall hold a restitution hearing, prepare an amended or corrected abstract of judgment reflecting the results of that hearing, and forward a copy of the new abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
DUARTE, J.