THE PEOPLE v. BERNARDO EDROSA (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Bernardo Edrosa appeals from the judgment entered upon his conviction by jury of second degree robbery (Pen.Code, § 211).¹  The jury found the personal use of a handgun allegation within the meaning of section 12022.53, subdivision (b) to be true.   Defendant admitted having suffered one prior serious or violent felony strike within the meaning of sections 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i), one prior serious felony within the meaning of section 667, subdivision (a) and three prior prison terms within the meaning of section 667.5, subdivision (b).  The trial court sentenced him to a state prison term of 21 years and ordered him to pay victim restitution in the amount of $1,015, plus 10 percent interest per year.   Defendant contends that (1) the trial court abused its discretion by ordering restitution in an amount greater than necessary to make the victim whole, and (2) if defense counsel forfeited his restitution claim, defendant suffered ineffective assistance of counsel.

We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

On June 10, 2005, Niels Loucks (Loucks) was selling home theater audio systems in a Bank of America parking lot in Signal Hill. Loucks purchased the systems wholesale for $155 each and “tried to get about 500 [dollars] but sometimes, like, 200 [dollars]” for each.   Each system was worth $3,600 retail.

Loucks offered to sell an audio system to Treniel Dwain Costello (Costello), as Costello was walking into the bank.   Costello purchased one for $220 and then telephoned his friend, defendant, to see if he wanted to purchase one.   Defendant came to the parking lot and also bought an audio system for $220.

An hour or two later, Costello telephoned Loucks and asked to meet again so he could purchase another system.   They met, and defendant purchased a second stereo system.

On June 13, 2005, defendant telephoned Loucks, wanting to purchase additional audio systems for approximately $200 each.   In anticipation of the additional sales, Loucks purchased seven more systems, five at $150 each and two at $130 each.   Defendant and Costello met with Loucks and put the stereo systems in Costello's SUV.

When it was time for defendant to pay, he reached into his pants and pulled out a semiautomatic handgun.   He took $30 from Loucks and Loucks's car keys, which he threw in the bushes.   Costello drove defendant back to defendant's apartment where they unloaded the stereo systems.   Costello took one, and defendant kept the rest.

Signal Hill police learned where defendant lived and on June 24, 2005, executed a search warrant at defendant's residence.   On the back porch, there were nine boxes of stereo systems.   There was also a stereo system in the living room.   Ultimately, Loucks recovered two and one-half of the stereo systems and lost four and one-half.

Defendant's version of the incident was quite different.   He testified that he did not have enough money to buy the audio systems he had requested.   As a result, Loucks agreed to take a pound and one-half of marijuana plus $150.   When defendant met with Loucks to pick up the systems, Loucks did not yet have them.   Defendant nonetheless gave Loucks the marijuana, but not the $150.   When Loucks later obtained the audio systems, he again met with defendant and Costello.   Loucks complained that the marijuana he had been given was bad and demanded another bag, but refused to return the original bag so defendant could exchange it.   Defendant responded that he was taking the stereos, which had already been loaded in Costello's SUV, as payment for the unreturned marijuana.   Loucks reached for his waist.   Defendant thought he was reaching for a gun so defendant pulled out his gun and pointed it downward.   Defendant patted down Loucks and took his keys, fearing Loucks might have a gun in the car, but took nothing else.

DISCUSSION

I. Victim restitution

A December 2007 probation report listed the total value of the stolen merchandise at approximately $1,200.   It noted that Loucks estimated that he recovered one-half of the merchandise and was seeking $630.

At trial, Loucks testified that he paid a total of $1,010 for the stolen stereo equipment, $150 for five of the systems, and $130 for the other two.   He testified that he recovered two and one-half of the seven stolen systems.

At the sentencing hearing, after imposing sentence and informing defendant of his appeal rights, the prosecutor reminded the trial court that it still had to deal with restitution.   The prosecutor estimated the amount of restitution to be $1,015, plus 10 percent interest from the date the property was taken.   The trial court then said, “All right.   Good luck to you, Mr. Edrosa.”   After a discussion of credits and other matters, the court said the matter was being transferred and concluded the proceedings.   Defendant's counsel made no objection to the restitution order and failed to request a restitution hearing.

The trial court later signed a restitution order reflecting that a restitution hearing had been conducted and that appellant must pay $1,015 to Loucks, for the “value of property stolen or damaged.”

Defendant contends that he did not have a meaningful opportunity to object to the restitution award at the sentencing hearing and that that award exceeded Loucks's losses.   Defendant argues that “[a]fter [he] was sentenced on all counts and informed of his right to appeal, restitution was discussed for the first time, albeit briefly and in a conclusory manner, affording no opportunity to object to the award.”   He further argues that the amount awarded was stated with no discussion as to how it was derived and failed to reflect the stolen stereo systems that had been returned to the victim.

Respondent contends that defendant forfeited the restitution issue by failing to object at the sentencing hearing.   We agree with respondent.

Section 1202.4, subdivision (f) provides that “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.”   A claim that a restitution order is unwarranted by the evidence, as opposed to being unauthorized by statute, is forfeited if neither raised in the trial court by objection nor by a request for a hearing to determine the amount.  (People v. Brasure (2008) 42 Cal.4th 1037, 1075.)   Here, defendant made no objection when the trial court announced the amount of the victim restitution it was ordering, nor did he request a hearing to contest that amount.   Consequently, his claim that the restitution order was unsupported by the evidence has been forfeited.

Defendant argues that the forfeiture rule is inapplicable when a party lacks a meaningful opportunity to object, a proposition with which we do not quarrel.   He claims that he lacked such an opportunity here because the probation report “did not provide notice of the amount ultimately awarded and the court moved immediately to a discussion of other case-related matters after the new restitution amount was announced.”   We have reviewed the record carefully and do not find that defendant was denied an opportunity to object.

First, as defendant points out, the amount ordered by the trial court was greater than that set forth in the probation report, putting defendant on notice of the discrepancy and the need to register an objection, if he had one.

Second, we see nothing in the record that indicates that defendant's counsel was precluded from interjecting an objection before the trial court moved to other issues, or even to return to the restitution issue after discussion of the other issues was completed.   All that is required is that counsel states his or her objection.

Finally, “[t]he defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).)   Defendant failed to avail himself of that right.

II. Ineffective assistance of counsel

Defendant contends that if we find that the issue of restitution is forfeited, then trial counsel was ineffective for failing to preserve the issue by proper objection.   He argues that such failure could not possibly have been motivated by any tactical considerations.

Respondent contends that there is no Sixth Amendment right to counsel for victim restitution and hence there can be no ineffective assistance of counsel.   Respondent further contends that the failure to object was reasonable and caused defendant no prejudice.

To successfully assert a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness, and (2) but for counsel's errors there is a reasonable probability that the result of the proceeding would have been different.  (Strickland v. Washington (1984) 466 U.S. 668, 688, 694;  People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn 1.)

We conclude that there was no ineffective assistance of counsel here because there is no reasonable probability that the result would have been more favorable to defendant had his counsel objected.   The standard of proof at a restitution hearing is the preponderance of the evidence.  (People v. Millard (2009) 175 Cal.App.4th 7, 26.)   We review the trial court's restitution award for abuse of discretion.  (Ibid.) No abuse will be found when there is a factual or rational basis for the amount of restitution ordered.  (People v. Hudson (2003) 113 Cal.App.4th 924, 927.)

Here, the trial court did not abuse its discretion in assessing the victim restitution to be $1,015 plus interest at the rate of 10 percent from the date of the theft.   Subdivision (f)(3) of section 1202.4 itemizes some of the losses for which victim restitution may be ordered, including among them (1) the value of stolen or damaged goods, measured by “the replacement cost of like property” (§ 1202.4, subd. (f)(3)(A)), and (2) “[w]ages or profits lost by the victim” (§ 1202.4, subd. (f)(3)(E)).

The probation report stated that Loucks reported the total value of the stolen items to be approximately $1,200.   He also reported recovering half of the merchandise and that he was seeking $630 of restitution (one-half of the $1,200 merchandise stolen plus the $30 defendant took from him).   At trial, however, he testified that he paid a total of $1,010 for the seven stolen items, having paid $150 for five of them and $130 for two of them.   He recovered two and one-half of the stereo systems and suffered a loss of four and one-half.

From these facts, defendant argues that Loucks lost four and one-half of the audio systems (the seven systems stolen less the two and one-half returned to the victim),² that the average cost of each system (five at $150 and two at $130) was $144.28, that the total cost to replace the four and one-half unrecovered systems was therefore $649.26, and that when the $30 taken from Loucks is added to the cost of the unrecovered items, the total restitution should be $679.26.   The trial court's award is therefore excessive.

However, the evidence, which is in conflict as to the exact number of stereo systems taken by defendant and returned to Loucks,³ is reasonably susceptible to alternative calculations that justify the trial court's restitution order.   Using Loucks's own assessment, the trial court's restitution order was justified.   First, it is reasonable to infer that the one-half system returned to Loucks had to be replaced by a complete system.   Thus, the replacement cost (§ 1202.4, subd. (f)(3)(A)) of five systems at $150 each is $750.⁴  Further, Loucks was also entitled to his lost profit. (§ 1202.4, subd. (f)(3)(E).)   He had sold the first two units to defendant for $220.   At that price, he would have realized a $70 profit on each of the four and one-half unreturned systems.   The total profit Loucks would have realized on the four and one-half unreturned audio systems was $350.   Hence, the total reimbursement to which Loucks was entitled was the replacement cost plus his lost profit, or the total sum of $1,100 plus the $30 taken from him.

In summary, the evidence before the trial court more than supported the $1,015 victim restitution order, making it unlikely that defendant would have obtained a more favorable restitution order had his attorney objected to the order.   There was therefore no ineffective assistance of counsel.⁵

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The record is unclear why, if the stolen audio systems were recovered in the search of defendant's residence, Loucks had not received back all of his stolen property..  FN2. The record is unclear why, if the stolen audio systems were recovered in the search of defendant's residence, Loucks had not received back all of his stolen property.

FN3. See footnote 2. Also, there were 10 stereo systems taken from defendant's residence during the search, nine from the porch and one from inside of the apartment.   But the record reflects that he purchased two before stealing seven more, for a total of only nine systems..  FN3. See footnote 2. Also, there were 10 stereo systems taken from defendant's residence during the search, nine from the porch and one from inside of the apartment.   But the record reflects that he purchased two before stealing seven more, for a total of only nine systems.

FN4. We see no reason to average the cost as defendant suggests.   He was guilty of a serious crime and is not entitled to assumptions that work to his benefit.  (See People v. Millard, supra, 175 Cal.App.4th at p. 26 [a victim's restitution right is to be broadly and liberally construed].)   Hence, it was reasonable for the trial court to assume that the five systems that had to be replaced were those that cost Loucks $150..  FN4. We see no reason to average the cost as defendant suggests.   He was guilty of a serious crime and is not entitled to assumptions that work to his benefit.  (See People v. Millard, supra, 175 Cal.App.4th at p. 26 [a victim's restitution right is to be broadly and liberally construed].)   Hence, it was reasonable for the trial court to assume that the five systems that had to be replaced were those that cost Loucks $150.

FN5. Given our conclusion, we need not decide respondent's contention that there can be no ineffective assistance of counsel because there is no Sixth Amendment right to counsel for victim restitution determinations..  FN5. Given our conclusion, we need not decide respondent's contention that there can be no ineffective assistance of counsel because there is no Sixth Amendment right to counsel for victim restitution determinations.

_, P.J. BOREN _, J. ASHMANN-GERST