People v. Agustin CA6

Filed 7/28/15 P. v. Agustin CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H041555 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS121847A)

v.

JOSE ELISEO AGUSTIN,

Defendant and Appellant.

Defendant Jose Eliseo Agustin pleaded no contest to participating in the robbery of a Wal-Mart store where he worked. The trial court sentenced him to four years in state prison and, following a restitution hearing, ordered him to pay victim restitution in the amount of $126,501.93. On appeal, defendant contends the restitution order is unsupported by substantial evidence. We disagree and affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Defendant worked at a Wal-Mart store on North Main Street in Salinas. On August 14, 2012, that store was robbed at gunpoint while defendant and another employee were emptying the cash registers for the night. The North Main Street Wal-Mart was robbed again while defendant was working on September 27, 2012. Defendant radioed the employee working in the cash office and gave the code indicating an armored car had arrived. The employee opened the door to the cash office and led a man dressed in an armored car company uniform into the cash office. Inside the office, the man pointed a gun at the employee, zip tied the employee’s

hands, emptied the safe and cash drawers, and left. Defendant told officers he had called 911. He then consented to a search of his cell phone. On defendant’s cell phone, officers found a text message from “Junior” saying “I wanted to show you the uniform.” The subscriber associated with the phone number belonging to “Junior” was Rachel Chacon Ruiz. One of Ruiz’s relatives, Richard Chacon Jr., closely resembled the suspect as he appeared in Wal-Mart surveillance videos from the two robberies. Further investigation revealed defendant was Chacon’s nephew. Chacon was killed in a gun fight with police. In an amended complaint filed on November 14, 2012, the Monterey County District Attorney charged defendant in connection with the two Wal-Mart robberies. Defendant was charged with three counts of second degree robbery (Pen. Code, § 211)1 while a principal was armed with a firearm (§ 12022, subd. (a)(1)); three counts of assault with a firearm (§ 245); and one count of false imprisonment by violence (§ 236) while a principal was armed with a firearm. Defendant pleaded no contest to one count of second degree robbery and one count of assault with a firearm in connection with the September 27, 2012 robbery. Defendant also admitted the firearm allegation and executed a Harvey2 waiver, allowing the sentencing judge to consider the August robbery in setting the amount of victim restitution. The court sentenced defendant to four years in state prison, as called for by his plea agreement. With respect to victim restitution, the probation officer’s report stated that, according to Wal-Mart, $34,325 was stolen during the August robbery and $117,870.91 was stolen in the September robbery. At a hearing on victim restitution, the prosecutor submitted Wal-Mart incident reports stating $34,325 was stolen in the August robbery and $117,506.02 was stolen in the September robbery. The prosecutor also submitted the handwritten notes of an employee showing $34,324.91 was taken in the August robbery. 1 Unspecified statutory references are to the Penal Code. 2 People v. Harvey (1979) 25 Cal.3d 754. 2