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People v. Tate

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 23, 2012
E052802 (Cal. Ct. App. Jan. 23, 2012)

Opinion

E052802 Super.Ct.No. FMB006668

01-23-2012

THE PEOPLE, Plaintiff and Respondent, v. CLARENCE RAY TATE, Defendant and Appellant.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion nas not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, Judge. Affirmed.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Clarence Ray Tate pled guilty to four counts of grand theft by embezzlement (Pen. Code, § 487, subd. (a)) and three counts of illegally selling a vehicle (Veh. Code, § 12120). Defendant also admitted two strike priors (Pen. Code, § 667.5, subd. (b)). The trial court suspended a seven-year prison term and placed defendant on probation. Defendant contends insufficient evidence supports a restitution order. We affirm.

BACKGROUND

At a restitution hearing, the victim testified that he paid defendant $2,500 for a four-wheel all-terrain vehicle. The victim did not register the vehicle in his name because defendant told him he "didn't have to." According to a certificate of title submitted by defendant along with his notice of appeal, the vehicle is registered to an individual who is neither the victim nor the defendant, that person signed the certificate releasing his interest, but the signature block for a "transferee/buyer" is blank.

After the victim's purchase of the vehicle, the victim's son "cracked the oil pan, the shroud, underneath the [vehicle] by hitting a rock in the rain." The victim took the vehicle back to defendant's shop and was told the vehicle would need a rebuilt engine. The victim paid defendant $800 to repair the vehicle. The victim was told it would take three days to repair. However, the vehicle was not repaired and was returned to the victim in pieces. The victim was unable to get the pieces put together again as they did not match, or were broken, and he could not find anyone willing "to try to make this thing run again."

Defendant's wife testified that the victim had paid $2,500 for the vehicle, was quoted $800 for repair parts, but that the repairs wound up much more expensive. She testified that, because the vehicle had been damaged, it was "greatly devalued" when the victim brought it in for repairs.

The trial court ordered restitution to the victim in the amount of $3,300. Defendant complained that he "knew that was going to be the order of the Court from the beginning." The trial court responded, "[Defendant], I've been more than fair to you. As you know, when you were here under [a] probation violation, I could have sent you to state prison for seven years. You're a convicted felon. You've been convicted of embezzlement, dishonesty. The Court has no particular reason to believe the things that you said. The evidence that you brought to me today, in forms of printouts of Kelly Blue Books are older. They don't apply to what the [vehicle] would have been worth to get replaced 7, 8, 9 years ago when this was going on. There's evidence from the receipts that they purchased the [vehicle]. [¶] There was evidence from the receipts that he purchased the bike for $2,500. There's evidence which I believe that he paid you $800 to get it fix[ed]. I believed [the victim]. He was a little too dramatic for my liking, but there was also evidence that corroborated what he said occurred. Your wife didn't dispute that he paid $2,500 for the quad. She remembers quoting him $800. She doesn't recall if you received it or not. [¶] But, sir, you're convicted of embezzling from [the victim]. The evidence that I have, and if I follow Penal Code [s]ection 1202.46, based upon that, the . . . evidence before the Court is $2,500 for the quad, $800 for the remanufactured engine, which he didn't get because all he got back was the [vehicle] in pieces. And so that's where I am, and I have to listen to the evidence before me. I know you don't like it, but I have to make a call. I have to be fair to both sides. I have to follow the law as it is set out in [the] Penal Code . . . and you owe [the victim] $3,300, and that's payable through central collections plus a 10 percent collection fee."

The minute order from the restitution hearing created an additional term of probation requiring that defendant "[p]ay $3300.00 to Victim Restitution Fund to Central Collections" for the victim. Less than two months later, the trial court directed the clerk to "add the 10% admin. fee to $3000.00 for a total of $3300.00 through Central Collections payments starting 3-1-11, clerks office to notify." The trial court specified the reason for the instruction as "10% admin. fee and date to pay was left out of the order."

DISCUSSION

Defendant contends insufficient evidence supports the restitution award and, thus, was an abuse of discretion; under Penal Code section 1202.4, subdivision (f)(3)(A), the award should have been set to the replacement cost of the vehicle in its damaged condition, plus the $800 the victim paid for repairs. The People contend the award is valid because the victim neither received his vehicle back in a repaired condition approximating the purchase value nor obtained the value of the repairs for which he had paid $800. We affirm the award because it was within the trial court's discretion under Penal Code section 1203.1.

"A restitution order is reviewed for abuse of discretion and will not be reversed unless it is arbitrary or capricious. [Citation.] No abuse of discretion will be found where there is a rational and factual basis for the amount of restitution ordered. „ "[T]he standard of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a reasonable doubt." ' [Citation.]" (People v. Gemelli (2008) 161 Cal.App.4th 1539, 1542.) As a condition of probation, anyone may be awarded restitution for any injury done to them resulting from the breach of the law if the court determines it would be "fitting and proper to the end that justice may be done." (Pen. Code, § 1203.1, subd. (j).) "There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121 (Carbajal).)

"Trial courts continue to retain authority to impose restitution as a condition of probation in circumstances not otherwise dictated by section 1202.4. In both sections 1203.1 and 1202.4, restitution serves the purposes of both criminal rehabilitation and victim compensation. But the statutory schemes treat those goals differently. When section 1202.4 imposes its mandatory requirements in favor of a victim's right to restitution, the statute is explicit and narrow. When section 1203.1 provides the court with discretion to achieve a defendant's reformation, its ambit is necessarily broader, allowing a sentencing court the flexibility to encourage a defendant's reformation as the circumstances of his or her case require." (People v. Anderson (2010) 50 Cal.4th 19, 29.) Thus, contrary to both parties framing the issue under Penal Code section 1202.4, a trial court may impose probation restitution conditions under Penal Code section 1203.1 that are not provided for under Penal Code section 1202.4. (See Anderson, at pp. 26-34 [comparing sections 1203.1 and 1202.4].) Accordingly, the trial court was not required to apply Penal Code section 1202.4, subdivision (f)(3)(A), and set restitution at the replacement cost of the vehicle in its damaged condition plus the $800 the victim paid for repairs.

The victim paid $2,500 to defendant for a vehicle, without a proper transfer of title. The victim's son damaged the vehicle, and the victim then paid $800 to defendant for a rebuilt engine. The victim wound up with a vehicle reduced to pieces, and thereby did not obtain the rebuilt engine and lost the vehicle. The trial court imposed a term of probation requiring restitution to the victim of $3,000. This amount is higher than the value of the vehicle as damaged, but less than the combination of the value of the undamaged vehicle and the amount the victim paid for a rebuilt engine. Requiring defendant to assume almost complete financial responsibility for transferring a vehicle without proper title, subsequently taking additional money for repairs, but instead destroying the vehicle, is both a rehabilitative measure tailored to correct his behavior, as well as a deterrent to future criminality. (See Carbajal, supra, 10 Cal.4th at p. 1124.)

Accordingly, we find no abuse of discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.


Summaries of

People v. Tate

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 23, 2012
E052802 (Cal. Ct. App. Jan. 23, 2012)
Case details for

People v. Tate

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CLARENCE RAY TATE, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 23, 2012

Citations

E052802 (Cal. Ct. App. Jan. 23, 2012)