People v. Miller CA6

Filed 3/7/14 P. v. Miller CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H039406 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC942539)

v.

RICHARD DARRYL MILLER, JR.,

Defendant and Appellant.

Defendant Richard Darryl Miller, Jr. pleaded no contest to one count of first degree burglary (Pen. Code, § 459)1 in exchange for a sentence of 16 months in prison. The trial court ordered him to pay $5,500 in restitution for the victim’s loss of three items: a television, a camera, and a camcorder. On appeal, defendant contends the trial court erroneously imposed restitution in an amount greater than the replacement costs incurred by the victim. The Attorney General concedes the trial court erred as to the amount of restitution for the television, but argues the court properly determined the amount of restitution for the other two items. We agree with the Attorney General. We will reduce the amount of restitution to reflect the replacement cost of the television, and we will affirm the judgment in all other respects.

1 Subsequent undesignated statutory references are to the Penal Code.

I. FACTUAL AND PROCEDURAL BACKGROUND On May 5, 2009, the prosecution charged defendant with one count of first degree burglary.2 (§§ 459, 460, subd. (a).) The complaint also alleged defendant was on bail for the commission of another felony at the time of the offense. (§ 12022.1) On December 20, 2012, defendant pleaded no contest to residential burglary, and the enhancement allegation was stricken. In exchange for his plea, defendant was promised a 16-month sentence consecutive to another sentence arising out of a separate case. On January 28, 2013, the trial court imposed a total term of 17 years and 8 months in prison for both cases. At the restitution hearing, Ling Sen Peng, the victim, testified that defendant stole three items: a 43-inch Pioneer plasma television, a Canon DSLR digital camera, and a Sony camcorder. Ling bought the television in 2006 for $3,800, and he replaced it with a 46-inch LCD television for $1,600. He spent $1,000 to replace the stolen Canon camera—which he had received as a gift—with a Nikon camera of the same value. The stolen Sony camcorder cost $700, and he replaced it with a new Canon camcorder for $500. Although Ling spent less to replace the television and camcorder than he originally spent to buy them, he asked the court to award him restitution for the full, original cost of the items “as a penalty.” Defense counsel objected on the grounds that “Mr. Peng is not entitled to a windfall and he is not entitled to a penalty.” The court rejected this argument and ordered restitution for the full, original cost of the items in the amount of $5,500. II. DISCUSSION Section 1202.4 provides, in relevant part, that restitution “shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including, but