Filed 1/14/20 P. v. Mercer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Placer)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN ALBERT MERCER,

Defendant and Appellant.

C088113

(Super. Ct. No. 62-149180)

After defendant John Albert Mercer pleaded no contest to a number of felony and misdemeanor charges, the trial court held a contested victim restitution hearing as to two victims and ordered defendant pay over $100,000 as a result. On appeal, defendant contends he was entitled to a jury trial on the amount of restitution. Recognizing trial counsel did not request a jury trial or object to the restitution order on the relevant basis, defendant also argues counsel was ineffective as a result of these failures. We reach the merits of the claim and affirm.

BACKGROUND

In November 2015 law enforcement obtained a computer and flash memory drive from defendant’s desk at a construction company. The memory drive had numerous explicit pictures of defendant’s ex-girlfriend, Jane Doe 1, including nude photographs and sexual images taken without her consent.

A few months later, Jane Doe 2 reported defendant had sexually assaulted her while she was intoxicated. She also provided an audio recording between defendant and Jane Doe 2 discussing the fact that he had had sex with her while she was inebriated and their relationship history. At the end of the conversation, defendant apologized for misunderstanding the situation and taking advantage of her while she was drinking.

An amended complaint charged defendant with multiple sexual offenses, assault offenses, grand theft by embezzlement, and using a concealed camera to photograph another person. He pleaded no contest to two felony counts of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)), misdemeanor assault by means of force likely to cause great bodily injury and using a concealed camera to photograph another person (§ 647, subd. (j)(2)). Pursuant to the plea agreement, the trial court suspended imposition of judgment and placed defendant on five years of formal probation. The remaining counts, including an embezzlement charge, were dismissed with a Harvey waiver.

Defendant stipulated to owing $7,723.67 restitution to his former employer, the victim of the embezzlement. He contested owing an additional $1,589.80 to the construction company, as well as the amount owed to Jane Doe 2. After a contested hearing on these two amounts, the trial court ordered defendant to pay the employer a total of $9,313.51, including both the stipulated and disputed amounts, and to pay Jane Doe 2 $90,925.82.

DISCUSSION

Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 and Southern Union Co. v. United States (2012) 567 U.S. 343, defendant contends he was entitled to a jury trial on the issue of direct victim restitution. As defendant acknowledges, this court and several other California appellate courts have rejected claims that Apprendi and Southern Union require that defendants are entitled to a jury trial on the issue of direct victim restitution. He argues we should not follow these cases. Recognizing trial counsel did not request a jury trial or object to the restitution order on that basis, defendant argues if we deem the issue forfeited, he received ineffective assistance of counsel. We reach the merits and therefore do not address the second claim.

“[T]he Apprendi court held that, ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.] [¶] Thereafter, in Southern Union, the United States Supreme Court held that Sixth Amendment right to a jury applies to ‘sentences of criminal fines.’ ” (People v. Foalima (2015) 239 Cal.App.4th 1376, 1398.)

California courts have uniformly rejected the argument that these cases require the issue of victim restitution to be submitted to a jury: “[N]either Apprendi nor Southern Union applies to direct victim restitution because direct victim restitution is not a criminal penalty. [Citation.] ‘[D]irect victim restitution is a substitute for a civil remedy so that victims of crime do not need to file separate civil suits. It is not increased “punishment.” ’ [Citation.] Section 1202.4 imposes no statutory limits on the amount of direct restitution a court may order. [¶] . . . Since direct restitution is not a criminal penalty and is not subject to a statutory maximum amount, it is not subject to a jury trial and may be imposed based on the preponderance of the evidence.” (People v. Foalima, supra, 239 Cal.App.4th at pp. 1398-1399; accord, e.g., People v. Wasbotten (2014) 225 Cal.App.4th 306, 309; People v. Sweeney (2014) 228 Cal.App.4th 142, 155.) Federal circuit courts have done the same. (E.g. U.S. v. Rosbottom (5th Cir. 2014) 763 F.3d 408, 420 [“ ‘Apprendi is inapposite because no statutory maximum applies to restitution’ ”]; U.S. v. Wolfe (7th Cir. 2012) 701 F.3d 1206, 1217 [“restitution is not a criminal penalty”]; U.S. v. Leahy (3d Cir. 2006) 438 F.3d 328, 337 [“a restitution order does not punish a defendant beyond the ‘statutory maximum’ as that term has evolved in the Supreme Court’s Sixth Amendment jurisprudence”].)

Defendant has not cited any authority to support his position, and we see none. Accordingly, we reject defendant’s claim on the merits.

DISPOSITION

The judgment is affirmed.

/s/

Duarte, J.

We concur:

/s/

Murray, Acting P. J.

/s/

Krause, J.