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People v. Tapia

California Court of Appeals, Third District, Butte
Mar 27, 2008
No. C055429 (Cal. Ct. App. Mar. 27, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA TAPIA, Defendant and Appellant. C055429 California Court of Appeal, Third District, Butte March 27, 2008.

NOT TO BE PUBLISHED

Super. Ct. Nos. CM-022414, CM-022731, CM-023956

NICHOLSON, J.

Defendant, a small business bookkeeper, embezzled money from some of her employers. She pled no contest to three counts of grand theft. (Pen. Code, § 487, subd. (a).) The trial court sentenced defendant to a total state prison term of five years four months and ordered defendant to pay restitution to several victims.

On appeal, defendant contends that (1) three of the restitution orders were improper and (2) the trial court erred by not referring defendant for a commitment to the California Rehabilitation Center. We conclude that defendant forfeited the ability to raise these issues on appeal because she did not raise them in the trial court. We also conclude, with one exception, that defendant’s argument that counsel was deficient for not raising these issues is not supported by the record on appeal. We strike one element of the restitution order. As modified, we affirm the judgment.

Additional matters of fact and procedure are discussed as they become relevant.

DISCUSSION

I

Specific Restitution Orders

Defendant contends the trial court erred in making three specific restitution orders in favor of her victims. We conclude defendant forfeited these objections by failing to make them in the trial court. Reviewing them in connection with defendant’s claim of ineffective assistance of counsel, however, we conclude that the restitution order as to Dennis Dohy must be stricken.

A. Background

A trial court’s determination of the amount of restitution is reversible only if the defendant demonstrates a clear abuse of discretion. (People v. Thygesen (1999) 69 Cal.App.4th 988, 992.) No abuse of discretion is shown simply because the order does not reflect the amount of damages recoverable in a civil action. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.) “In determining the amount of restitution, all that is required is that the trial court ‘use a rational method that could reasonably be said to make the victim whole, and may not make an order which is arbitrary or capricious.’” (Ibid.; People v. Mearns (2002) 97 Cal.App.4th 493, 498; People v. Thygesen, supra, at p. 992.) The order must be affirmed if there is a factual and rational basis for the amount. (People v. Mearns, supra, p. 499.)

B. Forfeiture

Defendant made no objection to the restitution orders in the trial court. She therefore forfeited her right to complain on appeal that the restitution orders were improper. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395-1396 [objections not raised at a restitution hearing are forfeited].)

Defendant attempts to skirt the forfeiture conclusion by asserting that the orders were not statutorily-authorized and therefore beyond the authority given to the court. In support of this proposition, she cites People v. Blackburn (1999) 72 Cal.App.4th 1520. We disagree that the restitution orders were not statutorily authorized. The state Constitution and Penal Code not only authorized restitution, but also mandated it. (Cal. Const., art. I, § 28(b); Pen. Code, § 1202.4, subd. (f).)

C. Effective Assistance of Counsel

Defendant further contends that trial counsel was ineffective, in violation of defendant’s right to counsel, because he did not object to the restitution orders. “To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569.) We conclude the contention is without merit except as to one component of the restitution order.

1. Dohy

The trial court ordered defendant to pay Dennis Dohy $500 in restitution (case No. CM-022731.) (The trial court misspoke when it referred to the victim as “David Dohy.” The victim’s first name is Dennis.) Defendant contends this order must be reversed because she was not convicted of criminal conduct related to Dohy.

Dohy submitted a victim’s statement to the probation department stating that defendant represented Loerke Insulation in dealing with Dohy. She extracted from him two payments of $500 totaling $1,000, rather than the agreed upon $500 for the work done at his home.

Penal Code section 1202.4, subdivision (a)(1), provides: “It is the intent of the Legislature that a victim of crime 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.” Citing People v. Percelle (2005) 126 Cal.App.4th 164, at pages 179 to 180, defendant contends that the clear and unambiguous language of Penal Code section 1202.4 limits restitution to losses caused by crimes for which the defendant was convicted. She reasons that, because she was not convicted of a crime against Dohy, it was improper for the trial court to order restitution to him. The Attorney General responds that the restitution order was proper because defendant’s “fraudulent actions against Loerke caused Dohy to sustain a loss of $500. Therefore, there was substantial evidence of loss to support the trial court’s order.”

We agree with defendant. Although there was substantial evidence that Dohy suffered a loss, defendant was not convicted for taking any money from Dohy. Loerke, the named victim, suffered no loss with respect to Dohy. Therefore, Dohy’s loss was not caused by a crime for which defendant was convicted. (See People v. Percelle, supra, 126 Cal.App.4th at p. 180.)

Trial counsel should have objected to the restitution order with respect to Dohy. Because he did not, and there is no apparent justification for failing to do so, we conclude that we must modify the restitution order by deleting the order of restitution to Dohy. (See People v. Anderson, supra, 25 Cal.4th at p. 569.)

2. Winco

The trial court ordered defendant to pay Winco $193.45 for a bad check she wrote. While conceding that (1) the Winco count was dismissed, with a Harvey waiver, as part of the plea bargain and (2) a count dismissed pursuant to a Harvey waiver may be the basis of a restitution order, defendant asserts that the filing of the Winco count was a violation of an earlier plea bargain. She therefore contends the Winco count cannot now form the basis of a restitution order. The assertion is without merit because, regardless of whether the filing of the Winco count was a violation of the prior plea bargain, defendant agreed, by virtue of her Harvey waiver, that the facts underlying the complaint could be used as a basis for a restitution order.

People v. Harvey (1979) 25 Cal.3d 754.

When defendant pled no contest to the Loerke Insulation count on July 25, 2005, her plea form stated that no misdemeanor case would be filed for “DA-05-1788,” which was the district attorney’s case number for the Winco bad check. But later, the district attorney filed case number SCR-54840, based on the Winco bad check. That case was dismissed, with a Harvey waiver, as part of the plea agreement in another count, filed separately (case No. CM-023956).

Defendant properly notes that (1) both sides must adhere to the terms of a plea agreement (see People v. Panizzon (1996) 13 Cal.4th 68, 80) and (2) the punishment cannot significantly exceed the terms agreed upon in the plea agreement (see People v. Walker (1991) 54 Cal.3d 1013, 1024). She therefore contends that restitution cannot be ordered for the Winco bad check.

This reasoning is flawed because it fails to take into account that, by making a Harvey waiver with respect to the Winco bad check, defendant consented to a restitution order on that count. (People v. Ozkan (2004) 124 Cal.App.4th 1072, 1078.) Conviction on that count (had that occurred) may have violated the earlier plea agreement, but restitution does not. Defendant’s leap in logic occurs in assuming that she could not have agreed to submit to a restitution order to Winco if the district attorney had not filed the complaint in the Winco case. (See People v. Goulart (1990) 224 Cal.App.3d 71, 80 [Harvey waiver applies to unfiled and dismissed charges].) She, in fact, agreed to be bound by a restitution order to Winco when she made the Harvey waiver.

3. Pennisi

Defendant concedes that she owes restitution to Giuseppe Pennisi. But she contends that the court’s restitution order of $25,000 was not supported by the evidence. To the contrary, the evidence was sufficient.

In November 2004, the Butte County Sheriff’s Office investigated defendant’s theft from G & G Properties, owned by Giuseppe and Grazia Pennisi. At that time, the Pennisi’s believed that defendant had taken about $13,000. After the theft was discovered, defendant paid them $7,000 and signed a promissory note for an unspecified amount.

In her victim’s statement filled out on September 28, 2005, 10 months after the initial investigation, Grazia Pennisi, responded to a question concerning the financial impact of defendant’s crime: “To this day, we still have to audit our books. We’ve lost so much money because everything that was entered in our computer was absolutely wrong. We’ve gone through 2 bookkeepers and now I am having to do my own books because I don’t trust anybody. $25,000 including stolen checks, lates [sic] on bills, fees on credit cards, and what she’s stolen.”

Just before sentencing, defendant’s counsel informed the court that defendant had no evidence to present on the subject of restitution. At the time, Grazia Pennisi’s victim’s statement, which was attached to the probation report and was given to defendant or her counsel, reflected the amount of $25,000.

On appeal, defendant attempts to use the statements made during the November 2004 investigation to discredit Grazia Pennisi’s statement 10 months later that the loss was $25,000. The problem with this argument is that it does not account for what was discovered in the intervening 10 months after the investigation started and when Grazia Pennisi filled out the victim’s statement. Therefore, the argument fails.

Defendant contends: “A victim’s claim in a probation report of the amount of loss without more cannot be the evidentiary basis for an award of restitution. (People v. Harvest (2000) 84 Cal.App.4th 641, 653; People v. Blankenship (1989) [213 Cal.App.3d 992, 996-998].)” This contention fails because the amount was not based on the probation report, alone. It was based on the victim’s statement, which is an adequate evidentiary basis. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048 [statements by victims about the value of property stolen are prima facie evidence of value].)

II

CRC Commitment

Defendant contends that the trial court erred by not making a determination as to whether she should be committed to the California Rehabilitation Center. (Welf. & Inst. Code, § 3051.) By failing to raise the issue in the trial court, she forfeited the ability to raise it on appeal. Also, the record does not support defendant’s additional contention that trial counsel was deficient for not raising the issue in the trial court.

A. Forfeiture

“Upon conviction of a defendant for a felony, . . . if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendant’s record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.” (Welf. & Inst., § 3051.)

A probation report prepared in September 2005 included this information about defendant’s drug use: “The defendant reported she has experimented with cocaine, methamphetamine and marijuana a few times many years ago.” In a probation report in January 2007, defendant claimed she had an unspecified drug problem and requested commitment to the California Rehabilitation Center. The officer who prepared the report stated: “It is noted [defendant] requested a commitment to CRC. However, without further substantiation of her alleged drug addiction, such a recommendation will not be made.” In February 2007, defendant’s sister submitted a letter to the court stating, “My sister has been chemically dependent on an assortment of drugs for as long as I can recall and I have seen her do many desperate things in order to obtain what she needs.” Defendant’s daughter wrote that her mother had a long-term drug-addiction problem and gave details of her mother’s addiction. The record contains no indication, however, that defendant, herself, made an effort to provide any details of her alleged addiction.

At sentencing, on March 6, 2007, the issue of a commitment to the California Rehabilitation Center was not raised. She was sentenced to a total term of five years four months in state prison, with credit for 249 days of presentence time.

Defendant concedes that a failure to request a CRC commitment in the trial court forfeits consideration of the issue on appeal. (People v. Lizarraga (2003) 110 Cal.App.4th 689.) But she contends: “Here, the court had all the information it needed, including her request for CRC, to make a determination that [defendant] may be addicted to drugs or in imminent danger of becoming addicted and was thus required to refer her to CRC or state a reason why it declined to do so.”

We disagree. Defendant simply did not raise the issue of a CRC commitment with the trial court. It was not enough to make an unsubstantiated request to the probation officer. Although others wrote letters to the court about her alleged drug addiction, defendant, herself, neither wrote to the court nor raised the issue during sentencing. This failure to raise the issue forfeited its consideration on appeal.

B. Effective Assistance of Counsel

Defendant claims that we must find that her right to counsel was violated by trial counsel’s failure to raise the CRC commitment issue in the trial court. To the contrary, because the record is unclear as to why that issue was not raised, we cannot reverse.

Because it is often difficult on the typical appellate record to determine, our Supreme Court has repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding: “We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

On this record, we are unable to conclude that counsel had no legitimate reason not to raise the issue of a CRC commitment. Defendant, herself, never provided details of her alleged drug addiction. She requested a CRC commitment in her interview with the probation officer, but, less than two months later, the issue was not raised at sentencing. This is a fact-intensive matter, requiring a knowledge of the true nature of defendant’s alleged addiction, her desires, and the communications she had with her attorney. Whether the failure to raise the issue was because defendant discussed it with counsel and the decision was made not to raise it or, on the other hand, because trial counsel was deficient is a matter on which we can only speculate. And we cannot base a reversal on speculation.

DISPOSITION

The restitution order is modified by striking the amount payable to Dennis Dohy. In all other respects, the judgment is affirmed. The superior court is directed to make this modification and forward the modified abstract of judgment to the Department of Corrections and Rehabilitation.

We concur DAVIS , Acting P.J., RAYE , J.


Summaries of

People v. Tapia

California Court of Appeals, Third District, Butte
Mar 27, 2008
No. C055429 (Cal. Ct. App. Mar. 27, 2008)
Case details for

People v. Tapia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA TAPIA, Defendant and…

Court:California Court of Appeals, Third District, Butte

Date published: Mar 27, 2008

Citations

No. C055429 (Cal. Ct. App. Mar. 27, 2008)