Filed 12/19/19 P. v. Mendoza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEX LUIS MENDOZA,

Defendant and Appellant.

F076672

(Super. Ct. No. CRM025834)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Jeanne Schechter, Judge.

Joshua G. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Alex Luis Mendoza contends on appeal that the trial court abused its discretion in determining the amount of victim restitution he must pay. The People maintain defendant forfeited the issue and, in any event, it has no merit. We affirm.

BACKGROUND

On November 13, 2012, defendant inflicted extensive damage on dairy buildings by stripping and stealing metal pipes, electrical wires, and electrical breakers. The dairy owner caught him with a metal pipe in one hand and a screwdriver in the other, before defendant got away with a car full of property.

On October 22, 2013, defendant pled no contest to second degree burglary. (Pen. Code, § 459.) The trial court granted three years’ probation with six months in jail. A vandalism count (§ 594, subd. (b)(1)) was dismissed with a Harvey waiver, allowing the sentencing judge to consider the entire factual background of the case, including any dismissed or stricken charges when imposing sentence and ordering restitution, as stated and initialed on defendant’s signed plea form. The court did not order restitution at this time, but reserved jurisdiction over the matter. Defendant was released.

On November 1, 2013, the prosecution filed a motion to order $89,500 restitution to the victims, based on a repair estimate. On February 28, 2014, the trial court held a restitution hearing. After hearing testimony from the victims, the court requested further information on what needed to be replaced at the dairy. The court again reserved a ruling on restitution.

On March 29, 2016, the prosecution filed a new motion to order $123,318.76 restitution to the victims, based on the new information requested by the court. On May 19 and June 23, 2017, a second hearing was held, in which a property claims specialist testified. On June 23, 2017, the court stated:

“[I]t was clear to me from the testimony that there was at least some damage that was caused afterwards, like that there was a sink that was taken afterwards. [¶] … [¶] So I think some of the damage probably was caused. So the Court needs to figure out some sort of fair way to apportion this at something less than what the People are asking for, and I have to figure that out. So I’m going to do my best. Maybe if I can understand these invoices enough to determine that, I will do so. If not, we may have to—the Court may seek further guidance on that from Counsel or even witnesses.”

The court took the matter under submission.

On July 26, 2017, the trial court issued a “Restitution Ruling Part 1,” which requested further information for many parts and services. At the hearing, the court explained it believed the evidence showed there was more than one incident of theft and vandalism at the dairy, and some of the damages were not attributable to defendant. But because the documents provided lump sums, the court required further information from the prosecution to break down the expenses. The parties agreed on the next hearing date.

On September 7, 2017, the prosecutor presented the court with documents that further itemized costs. Defense counsel voiced his concern to the court that some of the labor costs were still not itemized. The following occurred:

“THE COURT: Let me tell you this, what my intent was. I’m not going to order your client to pay all of this. I don’t think that’s appropriate. I think it was clear not all of the damage was due to anything that he did. It certainly is challenging to come up with a number. But my idea was for the areas that I listed on that initial part, you know, of my ruling go into and basically assign a percentage to him. If I can calculate what those costs are, get some idea from these documents now[,] then assign a percentage.

“[DEFENSE COUNSEL]: Okay.

“THE COURT: I think—because it seems clear to the Court that there must have been more people involved in this, and I don’t think there’s been proof that he’s done it all. I mean, especially in the short time he was there in six hours or whatever. So why don’t we do this: Why don’t I come up with a number, and if there are more questions that you have, we can certainly revisit the issue again. But let’s see if I can come up with something that everyone can live with. You want to do that, handle it that way?

“[DEFENSE COUNSEL]: Yeah. Sure, you Honor.”

The parties then scheduled the next hearing date.

On October 12, 2017, the trial court issued its restitution order requiring that defendant pay $43,614.35 in restitution. The following occurred:

“[THE COURT:] After going through the additional information provided, the Court does note the People were seeking restitution in the amount of $123,718.76. [¶] As the Court stated, there was evidence presented that not all of the damages claimed occurred during the particular incident; however, this incident did cause a very substantial amount of damage, the tearing apart of various apparatus used in this dairy operation in order to obtain wiring, piping and other items of value, and did result in a tremendous amount of repair and/or replacement in order to restore the dairy to operating standards. So I will be setting restitution in the amount of $43,614.35.

“And if you want to submit an order, the People—the court will sign that, and you can set up payments with court collections. [¶] And who’s the—does this go to the insurance company or—well, it will go to the victim[s].

“[DEFENSE COUNSEL]: Yeah, it will go to the victims, your Honor.

“THE COURT: I’ll need the victims’ names.

“[DEFENSE COUNSEL]: They can worry about reimbursing.

“THE COURT: It will be payable to the victims. That’s between them and the insurance company. [¶] And so when you submit that order, if you can make sure the victims’ [names] are on it.

“[PROSECUTOR]: Will do, your Honor.

“THE COURT: All right. Thank you.”

On November 28, 2017, defendant filed a notice of appeal.

DISCUSSION

Defendant contends the trial court arbitrarily assigned a percentage of the total damage, rather than calculating restitution based on evidence of the harm caused by defendant. He also claims the factual basis of the plea did not support the restitution order because his car was too small to carry off enough material to justify the restitution amount.

After reviewing the record, we agree defendant has forfeited these challenges. Throughout the extensive contested hearing, both parties thoroughly questioned the witnesses and considered a multitude of documents. Defense counsel vigorously argued that defendant was not responsible for all the damages because other vandalism had since occurred at the dairy. After the parties submitted the matter, the court thoughtfully explained the difficulty of its task, conscientiously requested more itemized information to consider, and clearly informed the parties of its intention to rely on itemized costs when possible and to attribute a percentage of the nonitemized costs to defendant if necessary. Defense counsel expressly agreed to this process and was informed he would have another opportunity to raise his objections. When presented with the court’s final sum, which was approximately 35 percent of the amount requested by the prosecution, defense counsel did not object to anything—not the amount, the method of calculation, or the lack of further explanation by the court. Thus, defendant has forfeited any challenges to these matters on appeal. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.)

DISPOSITION

The judgment is affirmed.