Monday, April 14, 2008

California DUI restitution case

California DUI attorney case

Filed 4/10/08 P. v. Meza CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,
Plaintiff and Respondent,

v.

FELIX DANIEL MEZA,

Defendant and Appellant.
C055143
(Super. Ct. No. CM025215)


On July 9, 2006, 23-year-old defendant Felix Daniel Meza, speeding in a stolen truck, failed to stop for a pursuing officer. Defendant drove through a metal gate and an open field, running over two cats and missing several horses, and collided with a horse stable. He fled on foot but was eventually caught. A search of his person revealed 1.7 grams of marijuana. His blood alcohol content was .096 percent.

Defendant entered a no contest plea to vehicle theft (Veh. Code, § 10851, subd. (a); count 1), felony evading (Veh. Code,

§ 2800.2, subd. (a); count 2) and driving under the influence of .08 percent or more (Veh. Code, § 23152, subd. (b); count 5) with two prior drunk driving convictions in 2005. In exchange, the remaining counts were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.

The court granted probation for a term of three years subject to certain terms and conditions including 95 days in jail with credit for 95 days served. The court reserved jurisdiction over victim restitution. After a contested restitution hearing, the court ordered, inter alia, defendant to pay $35,816.97 to the owners of the stolen truck.

On appeal, defendant challenges a certain part of the court-ordered restitution to the owners of the stolen truck, contending that the trial court’s award of $130 to cover a bug shield was based on unreliable, inaccurate and vague evidence. On this record, the contention is frivolous. We will affirm.

Both the prosecutor and defense counsel filed briefs on the issue of restitution. The owners of the stolen truck provided a written estimate of their financial loss which included an American flag bug shield in the amount of $130. Defense counsel submitted an exhibit reflecting that an American flag bug shield could be purchased on e-Bay for $85.99 plus $19.99 shipping for a total of $105.98.

At the restitution hearing, the prosecutor and defense counsel stipulated that the insurance company reimbursed the owners of the stolen truck in the amount of $35,336.97. The prosecutor stated that the owners wanted the amount stipulated to and were “also asking for $130 for a bug shield that he installed, $420 for a bed liner that he had installed, and $100 for labor for installation of a hitch.” Defense counsel argued that the owners were entitled to their insurance deductible of $250, $400 for the bed liner if not covered by insurance and an amount, which was in dispute, for the bug shield. The court queried whether the bed liner and bug shield were considered by the insurance company in setting the value. The prosecutor stated that the items were added after the owners purchased the truck. The owner stated he did not know whether the insurance company took the items into account in setting the value but stated that “after [defendant] crashed [the truck] the bug shield was nowhere to be found.” The owner was present when the truck was appraised but did not know whether the appraiser took the bed liner into consideration. The owner did not recall whether he told the appraiser about the bug shield. The court ordered defendant to pay the owners of the stolen truck “the amount that the insurance company paid, $35,336.97, plus the $250 deductible, plus the $130 bug shield which wasn’t present on the vehicle at the time it was appraised, plus the $100 in labor to install the hitch.” When asked about the bed liner, the court responded, “No, I’m considering that that was evaluated. It was certainly in front of the appraiser at the time it was evaluated.”

Penal Code section 1202.4 provides, in relevant part, as follows:

“(f) Except as provided in subdivision (q), in 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. . . . [¶] . . . [¶] (2) Determination of the amount of restitution ordered pursuant to this subdivision shall not be affected by the indemnification or subrogation rights of any third party. . . . [¶] (3) To the extent possible, the restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and 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, including, but not limited to, all of the following: [¶] (A) Full or partial payment for the value of stolen or damaged property. The value of stolen or damaged property shall be the replacement cost of like property, or the actual cost of repairing the property when repair is possible.”

The victim of a crime is entitled to full restitution from the offender unless the court finds compelling reasons for ordering a lesser award and states reasons. (Cal. Cons., art. I, § 28; Pen. Code, § 1202.4, subd. (f).) The trial court’s order for reimbursement of the owners’ out-of-pocket expense for the bug shield is reasonably related to defendant’s crime. But for defendant’s taking and wrecking of the truck, the owners would not have incurred the expense.

“‘[T]he trial court is entitled to consider the probation report when determining the amount of restitution.’ [Citation.] For example, statements by the victims of the crimes about the value of the property stolen constitute ‘prima facie evidence of value for purposes of restitution.’ [Citations.] ‘This is so

because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. [Citation.] When the probation report includes information on the amount of the victim’s loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount.’ [Citation.] Absent a challenge by the defendant, an award of the amount specified in the probation report is not an abuse of discretion. [Citation.]” (People v. Keichler (2005) 129 Cal.App.4th 1039, 1048.)

Here, the owners presented a written estimate of their loss. Defendant challenged the amount claimed for the bug shield. The owners claimed $130 to reimburse them for the out-of-pocket cost to buy and install the American flag bug shield missing from their truck defendant stole and subsequently wrecked. Their statement constituted prima facie evidence of the value of the bug shield. Defendant submitted information obtained from e-Bay for a bug shield at the cost of $105.98. But he failed to demonstrate that the bug shield online was equivalent to the bug shield the owners obtained to replace the one missing as a result of defendant’s criminal conduct. Further, defendant presented no evidence of the installation cost. Simply put, defendant failed to present reliable information to contest the amount the owners claimed. We find no abuse; the trial court’s order made the owners whole. (People v. Akins (2005) 128 Cal.App.4th 1376, 1382.)

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

NICHOLSON , J.

ROBIE , J.