People v. Arias CA6

Filed 3/5/14 P. v. Arias CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H038888 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC952349)

v.

MARIO MARTINEZ ARIAS,

Defendant and Appellant.

In this appeal Mario Arias (appellant) challenges a victim restitution order in the amount of $5,580 that was entered on August 10, 2012, following a formal restitution hearing. After two trials, appellant was convicted of vehicle theft (Veh. Code, § 10851, subd. (a), count one), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count two), driving a vehicle in the direction opposite to that of lawful traffic flow while fleeing a pursuing peace officer's motor vehicle (Veh. Code, § 2800.4, count three) and reckless driving while fleeing a pursuing peace officer's motor vehicle (Veh. Code, § 2800.2, subd. (a), count four). This is appellant's second appeal in this case. In H038532, appellant appealed his convictions. On this court's own motion we have taken judicial notice of the record in that case. In his first trial, the jury found appellant guilty of counts one, three and four, but hung 11-1 for guilty on the assault with a deadly weapon charge (count two).

Accordingly, the court declared a mistrial as to that count. At the retrial on the assault with a deadly weapon charge, the jury found appellant guilty. Subsequently, the court sentenced appellant to state prison for 14 years four months—eight years on count two (assault with a deadly weapon—the upper term of four years doubled because of appellant's prior strike conviction), a consecutive 16 month term for count one (the vehicle theft), a concurrent upper term of six years for count three (driving the wrong direction while fleeing from police), a concurrent upper term of six years for count four (reckless driving while fleeing a police officer) and a consecutive five year term for the prior conviction. The court imposed a victim restitution order in the amount of $6,207.20. However, appellant objected to the amount and requested a formal restitution hearing. At the formal restitution hearing, the victim of the vehicle theft, John Van, testified about the losses he incurred as the result of the theft of his 1997 Honda Accord.1 Mr. Van said that before the Honda was damaged in a crash, it was in excellent mechanical condition, was not in need of body work, and had no damage to the interior. Every year his mechanic examined the car; and if repairs were needed he had work done in order to keep the car in excellent condition. Further, he stated that the car had the oil changed every three months and although there were a few scratches, there were no dents. There was no rust on the car, no fluid leaks in the engine compartment and all the upholstery was intact and in excellent condition. The car had never had a "paint job." Moreover, all the tires matched and the car had periodic smog inspections. Based on the condition of the car and information he got from a friend he valued the car at $4,000.2 The car had been driven over 90,000 miles. Mr. Van estimated that it was somewhere between 97,000 and 98,000 miles. In addition to the losses incurred related to the Honda,