Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura Kevin J. McGee, Judge Super. Ct. No. 20046041461
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant was convicted by guilty plea of the unlawful taking of a vehicle. (Veh. Code, § 10851, subd. (a).) He admitted a prior conviction within the meaning of Penal Code section 666.5 and admitted allegations of two prior prison terms (§ 667.5, subd. (b)) and one prior serious or violent felony conviction within the meaning of the Three Strikes law. (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i).)
All further statutory references are to the Penal Code unless otherwise stated.
Appellant filed a Romero motion, which the trial court denied. It imposed a sentence of the low term of two years, doubled pursuant to the Three Strikes law. The court struck the section 667.5 subdivision (b) prior convictions. Appellant was ordered to pay restitution, including $300 to the victim. On appeal appellant contends that the restitution order of $300 was unrelated to the crime for which he was convicted and must therefore be reversed. We affirm.
People v. Romero (1996) 13 Cal.4th 497.
FACTS
According to the probation officer's report, the victim reported that his 1998 Chevy Cavalier had been stolen from outside a Ventura residence where he was working. He had left his keys in the ignition and the doors unlocked.
On the following day, November 1, 2006, police officers observed appellant driving the Chevy Cavalier and pulled him over. Three other passengers, which included appellant's mother and sister, were removed from the car and allowed to leave the scene.
After being advised of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, appellant told the officers that, on October 31, 2006, he was leaving his parole appointment. He was approached by an individual who asked him if he wanted to buy a car. Appellant purchased the car for $20 and the individual directed him to the car's location and told him the keys were in the ignition. Appellant admitted that he knew the car was stolen.
The probation report included the victim's statement that the automobile was returned to him undamaged. He requested $300 in restitution for a camera that was inside his car. In the felony disposition statement, appellant stipulated that the court could consider the probation report as the factual basis for his plea. He also indicated that he understood that he might be ordered to pay direct victim restitution. At the sentencing hearing, the trial court ordered appellant to pay $300 in restitution to the victim.
DISCUSSION
Appellant contends that the restitution order is unlawful because he was not convicted of stealing the car, camera or receiving stolen property. He claims that the restitution order is therefore unrelated to the crime for which he was convicted. He also argues that there was no evidence that the camera was inside the car when he took possession.
The record reflects that appellant requested a certificate of probable cause. We ordered the superior court file, but there is no indication of the trial court's ruling. The People do not allege that appellant failed to obtain to receive a certificate of probable cause, nor do they argue that this appeal should be dismissed.
Under section 1237.5, a defendant may not appeal a judgment of conviction entered on a plea of guilty or nolo contendere unless he or she has filed a statement with the trial court "showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings," and has a certificate of probable cause for the appeal. However, if the appeal is based solely upon grounds occurring after entry of the plea which do not challenge its validity, a certificate of probable cause is unnecessary. (People v. Mendez (1999) 19 Cal.4th 1084, 1096.) Appellant makes no argument that the order of restitution is an unauthorized sentence or that the terms of his plea bargain were violated. Because the record does not reflect whether appellant obtained a certificate of probable cause, we address the merits of his appeal.
Appellant relies on section 1202.4 to contend that restitution is limited to losses arising from the criminal activity that formed the basis of his conviction. He claims that the trial court lacked jurisdiction to order him to pay restitution because he was not convicted of stealing the camera or receiving stolen property. In support of this contention, appellant cites People v. Lai (2006) 138 Cal.App.4th 1227, 1259 [restitution may not be imposed upon criminal conduct occurring before the charged offense]; People v. Percelle (2005) 126 Cal.App.4th 164, 180-181 [restitution improper where based on offense for which defendant was acquitted]; and People v. Woods (2008) 161 Cal.App.4th 1045, 1049, 1052 [restitution improperly imposed on accessory after the fact, because his participation in crime did not occur until after the loss was sustained].)
The restitution statute provides that a crime victim "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." (§ 1202.4, subd. (a)(1).) The trial court must order direct victim restitution "in every case in which a victim has suffered economic loss as a result of the defendant's conduct." (Id., subd. (f).)
Unlike the defendants in the foregoing authorities, appellant negotiated a plea agreement which included the term that he would pay victim restitution. He stipulated that the court could consider the probation report as the factual basis of his plea. The report included the victim's request for $300 in restitution for a camera. At the sentencing hearing, the trial court ordered the requested restitution. Appellant did not object to the restitution order or move to withdraw his plea, thereby waiving the issue on appeal. (People v. Walker (1991) 54 Cal.3d 1013, 1023; People v. Dickerson (2004) 122 Cal.App.4th 1374, 1382.)
The judgment (order of restitution) is affirmed.
We concur: GILBERT, P.J., YEGAN, J.
Restitution must be made to the victim "in an amount established by court order, based on the amount of loss claimed by the victim or any other showing to the court. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." (§ 1202.4, subd. (f).) The order of restitution "shall be of a dollar amount that is sufficient to fully reimburse the victim . . . for every determined economic loss incurred as a result of the defendant's criminal conduct." (Id., subd. (f)(3).