People v. Vcelik

Full title: THE PEOPLE, Plaintiff and Respondent, v. DONALD JOHN VCELIK, Defendant and…

Court: California Court of Appeals, Fourth District, Second Division

Date published: Jun 29, 2007

No. E041929 (Cal. Ct. App. Jun. 29, 2007)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. DONALD JOHN VCELIK, Defendant and Appellant. E041929 California Court of Appeal, Fourth District, Second Division June 29, 2007

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FWV36664, Raymond C. Youngquist, Judge. Affirmed as modified.

OPINION

King, J.

Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

Defendant pled guilty to one count of petty theft with a prior and admitted the truth of one prior strike allegation. (Pen. Code, §§ 666, 667 subds. (b)-(i), 1170.12 subds. (a)-(d).)¹ Defendant contends the court inadvertently imposed restitution in an amount $4 above what the testimony at the restitution hearing indicated and to which the parties agreed. The People concede the issue. We agree and, therefore, modify the amount of restitution. In all other respects, the judgment is affirmed.

1 All further statutory references are to the Penal Code unless otherwise indicated.

I. FACTS AND PROCEDURAL BACKGROUND

Defendant apparently stole parts from the air conditioning unit located on the roof of a commercial market.² The People charged defendant with two counts of petty theft with a prior (counts 1 & 2 -- § 666) and alleged three prior prison terms (§ 667.5 subd. (b)) and one strike prior (§§ 667, subds. (b)-(i), 1170.12 (a)-(d)). In return for defendant’s plea, the court dismissed the remaining count and allegations. The court sentenced defendant to the agreed aggregate term of four years, consisting of the midterm of two years on count 2, doubled due to his prior strike conviction. The court continued the matter to permit the probation officer to prepare a memorandum on the issue of the amount of restitution to impose.³ At the restitution hearing, undisputed testimony indicated that the replacement cost of the air conditioning unit would be $46,142, minus $2,000 for the cost of the motor which had already been damaged prior to defendant’s cannibalization of the unit. Thus, the parties agreed restitution should be ordered in the amount of $44,142. Nonetheless, the court imposed restitution in the amount of $44,146.

2 Contrary to the dictates of section 1192.5 and the cases interpreting it, the trial court permitted the parties to stipulate to the required factual basis for the plea without referring to specific facts or incorporating by reference documentation which established those facts. (See People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1576.) Thus, the facts of the underlying crime discussed above are as best we can glean from the testimony adduced at the hearing on the amount of restitution.

3 No such memorandum appears in the record.

II. DISCUSSION

Defendant’s sole contention on appeal is that the court committed a minor clerical error in awarding restitution in the amount of $44,146 instead of the $44,142 as the evidence below demonstrated. The People agree.

Where the People concede error in the determination of the amount of restitution and remand for an appropriate determination would be judicially uneconomical, the reviewing court may simply order modification of the restitution award. (People v. Vasquez Diaz (1991) 229 Cal.App.3d 1310, 1316.)

Here, it is incontrovertible that the trial court simply misspoke when it imposed restitution in an amount $4 above that testified and agreed to below. The sole witness to establish the amount of restitution testified that replacement of the air conditioning system would cost precisely $46,142.63. Likewise, he testified that that amount included $2,000 for replacement of the motor which was already damaged when defendant removed parts from the unit. Similarly, the replacement proposal, admitted into evidence as exhibit 1, also reflected an amount of $46,142.63. Furthermore, both parties agreed the court should impose restitution in the amount of $44,142; reflecting the total cost of replacement minus the $2,000 for the motor. Finally, the People concede the issue on appeal. Therefore, we shall direct that the amount of restitution be modified to reflect the correct amount as adduced below.

III. DISPOSITION

The trial court is directed to modify the minute order of October 27, 2006, to reflect imposition of restitution in the amount of $44,142. In all other respects, the judgment is affirmed.

We concur: Ramirez, P.J., Miller, J.