People v. Reese CA6

Filed 12/12/13 P. v. Reese CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039243 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1073140)

v.

RICHARD MICHAEL REESE,

Defendant and Appellant.

Defendant Richard Michael Reese appeals from a victim-restitution order imposed two years after his original sentence. He contends that the trial court (1) lacked jurisdiction to alter his original sentence, or (2) abused its discretion in ordering restitution. We disagree and affirm the order. BACKGROUND On April 26, 2009, thieves stole a Bobcat tractor and attached trencher from McGuire & Hester Company. On March 30, 2010, police officers executed a search warrant on defendant’s storage unit and found the tractor-trencher among other stolen property and contraband. Defendant told the police that he had purchased the tractor- trencher. But he pleaded no contest to buying, receiving, concealing, selling, or withholding stolen special construction equipment (Pen. Code, § 496d)1 and several other counts. The trial court sentenced him to four years in prison. At the sentencing hearing, it stated: “[Y]ou are ordered to pay restitution as determined by the probation 1 Further unspecified statutory references are to the Penal Code.

department, parole department, or the department of corrections, and you have a right to a court hearing on the amount.” Eighteen months later, the People filed a motion for a victim-restitution order. The motion asserted: “At the time of sentencing restitution was undetermined. The victim eventually contacted us regarding their stolen equipment and is requesting restitution. The stolen Bobcat and trencher were valued by the insurance company at $13,834.20 for both machines.” Defendant opposed the motion on the principal ground that the evidence did not support that he caused the victim’s loss given that his conviction was for possession of the property rather than theft of the property. The trial court granted the motion and explained: “Defendant, here, however admitted to the police that he had possession of the stolen Bobcat for approximately 1 year before his arrest . . . . Based on the date of loss of the Bobcat, that means defendant came into possession of the Bobcat when it was stolen, or very shortly thereafter. Defendant’s possession of the Bobcat for that period of time was therefore a ‘substantial factor’ in the decrease in value of the Bobcat.” JURISDICTION Victim restitution is mandated by the California Constitution, which provides in relevant part “[r]estitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss,” unless compelling and extraordinary reasons exist to the contrary. (Cal. Const., art. I, § 28, subd. (b)(13)(B).) Section 1202.4, subdivision (f), implements the constitutional mandate of restitution for crime victims by specifying that a trial court “shall require that the defendant make restitution to the victim or victims [of the crime]” and must order “full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record.” A sentence that fails to make an award of victim restitution is invalid. (People v. Bernal (2002) 101 Cal.App.4th 155, 164-165; People v. Rowland (1997) 51 Cal.App.4th 1745, 1751 (Rowland).)