*1 Dist., E010244. Fourth Div. Two. Mar. [No. 1993.] PEOPLE, THE Plaintiff and Respondent, v. FOSTER,
TERRY Defendant and Appellant. Dist., E011242. Fourth Div. Two. [No. Mar. 1993.] In re TERRY FOSTER on Habeas Corpus.
Counsel Barnes,
Steven W. under appointment Court of for Defendant Appeal, and and Appellant Petitioner. General, Williamson,
Daniel E. Lungren, Attorney George Chief Assistant General, Schons, General, and Attorney Gary W. Assistant Attorney Plaintiff and Respondent.
Opinion DABNEY, of residential Terry guilty defendant Foster A jury found J. (b)). (§451, (Pen. 459)1 subd. guilty and not arson burglary § conditions, among on the five years’ supervised probation court imposed fine, $4,000 others, (1) stayed upon to be that Foster restitution pay (3) (2) jail; pay 365 days county serve completion probation; successful $7,040 Insurance Company; fee restitution to Farmers a 10 plus percent $8,000 victim. fee as restitution to the (4) a 10 plus percent pay victim, the to the (1) ordering Foster that: restitution
On claims appeal, as to victim’s uncorroborated statement rely solely court could not on the the stolen the court could not order cost of property; victim; was not a to the insurance because the insurance company his trial he received ineffective assistance counsel because and to the valuation of the victim’s loss failure to to the counsel’s company. restitution to the insurance condition of his repeats In a concurrent for writ of habeas petition corpus, that he received ineffective assistance of counsel. contention
Facts food, in took Defendant in Crestline summer 1988 and burglarized a cabin beer, artifacts, American equipment, stereo Native equipment, camping forth an Indian Other facts are set as rug, rug, rug. cowskin and a Persian necessary discussion.
Discussion
E010244 1. Award. Supporting Evidence Restitution $8,000 of A of Foster’s was that Foster pay condition victim, which cost of a Persian for rug representing to the Foster no her insurance payment company, received from victim court could the victim’s statement to rely not on uncorroborated contends moreover, value of the rug, required the court establish the Penal Code otherwise further references are to unless indicated. 1 All 944 1203.04, (§ (d)),2 its replacement
determine the value of the subd. mg cost. He the order of restitution was therefore argues unsupported by record. entitled,
Cases have established that the defendant is on to a request, 502, (1987) (People Scroggins on the amount. 191 hearing defendant’s Cal.Rptr. sentencing deny court to [236 569] [error losses].) for a to determine the victims’ actual request hearing However, the informed Foster of the recommended probation report amount of failed to the restitution attorney object restitution.3 Foster’s Therefore, condition the trial court. error deemed waived any 1013, (See (1991) Walker 54 Cal.3d purposes appeal. People [1 861]; (1989) 212 People P.2d v. Rivera Cal.Rptr.2d 93].)
2. Assistance Counsel. Ineffective that his failure to to the restitution attorney’s condition constituted ineffective assistance of counsel. To prevail counsel, “(1) the issue of ineffective that: assistance of Foster must show trial counsel failed to act the manner to be expected reasonably attorneys reasonably advocates and it is competent acting diligent that a have probable more favorable determination would resulted absence of 50 Cal.3d counsel’s v. Lewis failings. [Citations.]” 834, 786 P.2d He must also show that counsel (Ibid.) had tactical challenged no informed reason for the act or omission. A. Valuation Loss.
In the that the victim had probation officer report, reported *6 $8,000, him the her told stolen included a Persian that had cost property mg which she had received no reimbursement from the insurance com Foster have to pany. objected contends his trial counsel should $8,000 the condition Foster to to the victim for her probation requiring pay loss. 2 “ partial payment damaged property, means full or for the value of stolen or ‘[Restitution’ committing were caused the as a the crime which by . . . which losses defendant result of damaged property replacement he or she was convicted. The value of stolen or shall be the 1203.04, (§ (d).) . .” property, cost of like . subd. 674], probation the People Cal.App.3d Cal.Rptr. 3 In v. Sandoval 1544 [254 $1,000 fine, but did not recommend restitution to the victim.
report recommended Nonetheless, $4,000 sentencing appeal, at the court ordered restitution of to the victim. On unexpected, deprived the restitution order was the defendant had been court ruled that because (Id., 1550.) opportunity validity p. to contest of the award. at Sandoval does not of an here, because the restitution ordered was the same as that recommended. apply cost was not
First, original of the that evidence argues Foster cost of sufficient; rather, replacement have determined the court should 1203.Id,4 Next, Foster 1203.04, section (d).) citing (§ subd. item. the stolen for pur cost of replacement that proof intended the Legislature contends that the He argues evidence. documentary made by restitution be poses does of the property the value statement about uncorroborated victim’s 1203.Id. in section intent expressed satisfy legislative Cost. Replacement Evidence B. not an property the stolen cost of
Foster that Rather, the record argues, for a restitution award. basis acceptable 1203.04, (§ the property. of the cost replacement must contain evidence (d).) subd. 131], the (1984) 163 People Hartley In $2,768, should be of restitution that amount officer stated
probation the victim’s was of that amount the victim’s loss statement. Most based on the defendant’s to gold rings containing gems. Responding valuation of three stated, amount, the well- “Given in the court that challenge to restitution and subject, in are gems markets gold fluctuations to which the known limited to statutorily make restitution obligation since defendant’s cost, clearly cost is determine the replacement hearing replacement {Id., 130 & fn. warranted.” 82], the People Voumazos restitution, $2,180 stated, trial “In defendant ordering pay
court officer relied the recommendation of defendant’s court who, entirely turn, of loss statement from figure solely victim’s] derived [the the testi- the statement nor and his discussions with Neither [the victim]. by the sum claimed established that [the officer mony cost of on the replacement for loss of was based property victim] that the of proving . . While a defendant bears the burden . property. replacement exceeds or repair of restitution claimed the victim amount [citation], here was not required defendant cost of lost or damaged property . . cost of victim’s] meet that burden inasmuch as replacement. [the {Id., 958-959.) not established.” at pp. property of restitu- the condition Hartley require Foster argues Voumazos stricken, the record contains no evidence to be the victim tion to *7 the We rug. disagree. cost of the replacement estimates, evidence, bills, states, receipts, repair “Documentary such as 1203.Id 4 Section stubs, records, statements, documents relevant and similar payroll business payment insurance hearsay as damaged property, . . . shall not be excluded of the stolen or the value evidence.” above, As noted the notice to the defendant probation report gives restitution, of the recommended him the hearing amount of and the offers the to rebut amount before the court determines the amount. opportunity 130.) (Hartley, supra, at At the defendant Cal.App.3d p. hearing, “[t]he bears burden of the victim’s restitution estimate exceeds the proving cost of the stolen v. Goulart replacement property. [Citation.]” (1990) 83-84 Hartley,
In the defendant a and the court refused the requested hearing, supra, This was found to be error. at request. (Hartley, However, in a nothing Hartley suggests request absent value, a even hearing, may court victim’s statement of rely Rather, the when the original based on cost rather than the cost. replacement Hartley court stated that a was warranted on the facts hearing presented as {Ibid.) Hartley when the defendant read We do not requested hearing. holding that the victim’s estimate did not constitute evidence supporting Rather, even Hartley rely restitution. court indicated that the court could on a loss filed unavailable to with the when the victim was report police {Ibid.) make a direct statement. addition,
In we find the reasoning of the court unpersuasive. Voumazos First, it objection is at odds with the that an must be principle evidentiary Code, (Evid. raised the trial it can court before be considered on appeal. Second, (a).) subd. it an unwarranted burden on the trial imposes § court, the and the victim.5 stolen prosecutor, types property, For most Third, original cost will be a fair cost. it is approximation replacement in Hartley also odds with the statement be based on a may valuation loss filed with the report We conclude that absent unusual circum- police. stances, or a defendant to the cost of a showing contrary, stolen item be treated as may evidence of cost for replacement purposes restitution. We reject therefore on this opinion point. Voumazos conclusion, this reaching we note that the trial court is entitled to consider the when A the amount of restitution. report determining owner’s statements the value her property about report should be property accepted facie evidence of value for prima purposes (Cf. restitution. Evid. 810 et rules of seq. [providing “special § evidence applicable any action which the value of is to be property 5 Here, rug. only easily the stolen item was a Persian information about its value victim, field, happened expert available to the unless she to be an was the cost of the Otherwise, incurring to her. she would have had expert appraiser, probably item to consult an fee, replacement determine rug. appraiser’s opinion cost of the Even an would necessarily speculative appraiser be because the not be age, would able examine the or condition of the quality, rug. stolen
947 “ sentencing draw a ascertained.”]) require judge ‘Due does not process evidence rules . . . courtroom die narrow net of through information kind discretion as to the unlimited Sentencing judges given virtually are [. whence it comes.’ and the source from can consider they of information (1985) 81 (People Cal.App.3d [222 Baumann v. [Citation.]” 32].) Cal.Rptr. does not of restitution is so because a to establish the amount hearing
This of a criminal prosecution. the formalities of other require phases 93].) When the Rivera victim’s loss on the amount of the includes information probation report restitution, must come the defendant a recommendation as to the amount of challenge “[A] forward with information to that amount. contrary defendant’s due if he is notice rights given are process protected amount; the amount of and an to contest that sought opportunity not ... are rigorous guilt procedural safeguards required during phase {Id., 1161.) at required.” p.
Here, heard on the Foster was a reasonable to be given opportunity the amounts of issue of restitution. The recommended report argues, restitution that the court at the sentencing hearing. adopted however, that have the recommended restitu objected his counsel should tion amount.
When a defendant failed to take a alleges particular his counsel action, he must show a reasonable that the omission probability attorney’s {Lewis, affected the supra, outcome of case. 50 Cal.3d Thus, it is that his coun enough for Foster to assert merely Rather, sel should have on the amount of restitution. requested hearing he had the burden of the value recommended demonstrating words, the probation was excessive. In other he had to make a report conduct, sufficient reason showing that but for his counsel’s the court was (See to have ordered a ably likely People lesser amount or no restitution. However, Cotton Foster has hint of the nature he made at given no have any showing might Thus, meet a valuation to contest the victim’s he has failed to hearing figure. that a demonstrating probable, his burden more favorable outcome had his counsel to the restitution objected requested hearing amount the amount.
Moreover, well counsel could have had a rational tactical reason failing amount restitution recommended rug He could have concluded that the cost of the easily replacement report. *9 cost, reason, detri- exceeded the victim’s and for that it would be mental client in the challenge to his to figure probation report. omission,
Because Foster has shown no from counsel’s and prejudice because counsel could well in failing have had a reasonable tactical purpose restitution, object to to the amount of we his claim of ineffective reject assistance. Documentary
C. Evidence.
Foster also contends that 1203.Id the court section allows because to consider tion, evidence of restitu purposes to establish value for documentary intended that of value be Legislature must have determinations based on evidence other than the We victim’s uncorroborated statement. contexts, In other his or disagree. an owner’s of the value of many opinion (See her is sufficient evidence to establish value. Evid. property § et There is no more rule seq.) justification stringent for requiring context of the relaxed of a determine conditions of procedure hearing to Rivera, (See supra, probation.
An meritless. objection on this basis would therefore have been Foster has not shown his counsel ineffective to to the failing object was evidentiary basis for the restitution condition. Company.
3. Restitution to Insurance Foster next contends the court erred restitution to ordering insurance company, because an insurance is not included company definition of “victim.” Foster’s He statutory challenge multipronged. (1) that: an variously anomaly statutory gov exists schemes restitution, in that an victim erning insurance is treated as a others; (2) some purposes, but not for criminal courts have no to jurisdiction (3) determine and enforce civil insurance liability nonparty companies; did Legislature not intend to include two definitions of “victim” within a statute; (4) single rules of dictate that the court apply construction defendant; (5) definition of “victim” that is most favorable to the restitution conditions of should not be more onerous than restitu if tion orders one is sentenced prison; because of the criminal sanctions a defendant facing who violates probation by failing pay restitution ordered a condition of the narrowest definition of probation, used; “victim” should be insurance indemnified may be companies their from customers instead of the restitution through process. follows, discussion which we have combined some of these contentions to facilitate analysis. award, that Foster’s failed to attorney People respond However, deemed any purposes appeal. error is waived for not be may
contends the Jurisdictional error jurisdictional. error *10 Williams (People waived the failure to raise it the trial court. 1520, with a 778].) begin 1524 We therefore 207 determine the review of the scheme which restitution to governs company. court’s to order restitution to an insurance power Statutory A. Overview. defendant,
When and 1203.04 granted is to a sections 1203.1 probation 1203.1 govern restitution as a condition of Section imposed probation. of court to “consider whether the defendant as a condition requires shall make Fund.” probation restitution to the victim or the Restitution 1203.04, (a) Section is granted, subdivision that when requires restitution, “(1) the court must To probation, order as a condition of victim, if the crime involved a shall be made to Payments victim. . . . Fund Restitution to the extent the victim has received assistance pursuant 1 4 13959) Article with 5 or Part of (commencing Chapter Section Division of Title of the Government Code.” If the crime did not involve victim, 1203.04, (§ the court must order restitution to the Restitution Fund. (a)(2).) subd. Neither section defines the term 1203.1 nor section 1203.04 “victim.”
Government Code section is restitution when governs states, (c) denied. Subdivision of that a victim section cases which “[i]n conduct, has suffered economic loss as a result of the defendant’s criminal and the defendant denied lieu all or a probation, portion of imposing fine, the restitution court shall order restitution to be victim.” paid 13967, For purposes restitution under Government Code section Legislature has defined a “victim” as a California resident who has sustained crime; injury or death as a direct result anyone legally of a for dependent certain support upon person; family members or close relations of the victim; and anyone who assumes medical for a deceased or burial costs (Gov. (a).) victim. subd. Reimbursable losses pecuniary § include “any for which the victim has not and will not be reim- expenses Code, 13960, (Gov. (d).) bursed from other source.” any subd. § Purposes B. Restitution.
Restitution serves different on whether the defendant purposes, depending granted or denied probation. discretion et trial courts “broad grants
Section 1203 seq. whether probation determination as to sentencing process, including and, so, (1975) 15 Lent if thereof.” the conditions appropriate 1203.1, section 541 P.2d Under Cal.3d it all probation conditions] trial or may impose “any court [reasonable done, that be may to the end that fitting justice determine are and may proper law, done to any injury for the breach of society amends be made to may breach, specifically generally from that resulting any person added.) (Italics probationer, ...” and rehabilitation of reformation unless appeal A not be invalidated may condition of probation *11 which the offender “(1) to the crime of relationship [was] condition has no criminal, convicted, (3) in itself (2) relates to conduct which is not crimi- related to future reasonably conduct which is not or forbids requires 623, (1967) 627 Dominguez Cal.App.2d [64 v. 256 (People . . . .” nality 290].) Cal.Rptr. under section as a condition of probation
When restitution is imposed restitution. goal is the of primary 1203 et rehabilitation of the criminal seq., 537, 614, P.2d 552 (1976) 17 Cal.3d 620 (People Cal.Rptr. v. Richards [131 deter need to first of rehabilitation is the 97].) “Implicit concept the defend found an order generally requiring criminal Courts have activity. activity. future criminal ant to the victim to be a deterrent to compensate 78, 224 (Goulart, supra, Cal.App.3d [Citations.]” fn. contrast, designed compensate
In section 13967 is “Government Code crime.” a direct result of a crime victims for economic losses suffered as 728, 861]; see (1988) Cal.Rptr. v. Serna 203 730 Cal.App.3d [249 Miller People Cal.App.3d also of a restitution ancillary purpose rehabilitation of the criminal is an Although section, California under this is to primary purpose compensate award suffer loss as a result of crime. residents who Company as a Victim. C. “Anomalous” Treatment Insurance is not consid law has established that an insurance company Case seq., governing 13959 et ered a victim under Government Code section Williams, supra 207 (see, e.g., when is denied 1520). restitution to notes that when the court orders already the victim has Fund as a condition of as when probation, Restitution Fund, cannot be company been reimbursed from the Restitution an insurance of a person a victim because it does not meet the definition considered (Gov. subd. entitled to from the Restitution Fund. payment § However, under section treated as a victim (a).) an insurance company reimbursed a victim who has not been et restitution to seq., governing (see, e.g., People granted Fund when from the Restitution 394]). Foster Calhoun 572-573 have been that could not anomaly that this results an contends situation Legislature. intended by did the Legislature argument,
In a variation on this Foster contends within the same different definitions of “victim” not intend to two apply whether order shall consider statute. Section 1203.1 states that court He Fund. the defendant the victim to the Restitution to make restitution to or either that the word “victim” must mean the same argues thing purpose, if from an insurance is not a victim entitled to reimbursement company Fund, cannot an insurance reasoning, Restitution parity 1203.04. be a victim entitled to direct restitution under sections 1203.1 and been a third variation his that the statutes have argument basic misconstrued, Foster also construction principles dictate that the meaning word “victim” have the same for all purposes *12 sections 1203.1 and Cal.3d 1203.04. 30 Hernandez 468 P.2d He that the word not may 637 contends have two different whether restitution is ordered to meanings depending on the victim or to Restitution Fund.
In an summary, Foster asserts that the situation of treatment of disparate An insurance is an unintended insur- company anomaly, by Legislature. defendant, ance is treated as a victim company only granted when who probation, argues ordered to to the victim. Foster pay directly that the extent of a defendant’s could liability vary depending for restitution on whether the victim had received from the Restitution reimbursement Fund, and the He Legislature could not have intended such a result. that holding cases that an insurance is a victim under section 1203 company et were wrongly therefore decided. seq. in
Foster overlooks fact that the two schemes found statutory Code and the Penal different Government Code definitions for apply instance, in People “victim” several other Narron term situations. For 693], the court held that a county be considered a victim entitled to restitution as a condition of proba- could The court noted that neither section 1203.1 nor section 1203.04 defined tion. The court “victim.” reasoned that ‘the of these favor a policies provisions definition which includes the where government flowing it suffered loss from a defendant’s criminal as a Including government potential conduct. conditions to employ with the court’s discretion ‘victim’ accords of the for the breach society be made to ‘that amends ... which ensure Moreover, law, of restitution 1203.1.) (Pen. concept . . .’ § a result of suffer loss as who people the notion only embodies [citation], but also for those losses compensated criminal should be activity future criminality’ ‘deterrent to the value of restitution as a perception aims are fur- Both [citation], the criminal.’ and ‘to rehabilitate [Citation.] whether or cases appropriate a restitution condition imposing thered by (192 not the victim is an individual.” the term different treatment one only example
Narron presents section Code and under Government under section 1203 et seq. “victim” section Code difference is that under Government et Another seq. reimburse- entitled to a California resident is (a), subdivision only section under restriction applies the Restitution Fund. No such ment from Thus, sections under be treated as a victim et a nonresident could seq. 1203.04, Code section 13967. not under Government 1203.1 and but intended deliberately that the Legislature These demonstrate examples schemes. different under the two applications term “victim” to have differently an insurance treating We therefore see no anomaly under the two schemes. view, the scheme anomaly apply it would create a greater our Foster, defendant’s responsibility under which a envisioned
apparently whether the depend upon he has stolen would make restitution for property ignore This result would insurance the loss. against victim had obtained *13 activity criminal which is to deter further conditions objective activity. criminal of his consequences the defendant to bear the by requiring Judgment. as a Civil D. Restitution has the a of probation that a restitution order as condition
Foster contends victim, to the payable civil to the judgment damages effect as a same civil theory. Addressing possible under a company subrogation insurance section restitution under the victim is not a function of proper liability 82.) 224 (Goulart, supra, atp. Cal.App.3d 1203.1. Williams, was not a held that an insurance supra, company the court 13960, subdivi- Code section meaning of Government
“victim” within restitution to an had no to award (a), jurisdiction the court therefore sion and (Williams, su- section 13967. under Government Code insurance accord, 1524; (1989) 213 People Blankenship at pra, Cal.App.3d p. 207 rea The Williams court 999-1000 soned that a “in effect civil judgment damages restitution order is Williams, against subrogation insurance on a payable company] [the is entitled to such theory. Whether insurance company] [Citation.] [the is not a matter which the trial had damages jurisdiction. over courts ‘[C]ivil cannot be a function of restitution a criminal case.’ liability [Citation.] criminal should not be . . used to judicial process supplement civil suit or and thus liability as a threat to coerce the of a civil payment ” reduce the criminal court to a collection agency.’ [Citations.]’ [Citation.]” (Williams, supra, 1524.) at p. Calhoun,
Foster argues that an was a victim holding insurance company under section et decided because it failed to address seq., wrongly the issue of a court’s civil power to create a criminal liability proceeding. above, As discussed the different the two schemes policies justify treating an insurance company differently. noted,
As the Goulart court by definition impacts potential “[Restitution civil liability, some all restoring or of the value of taken from a property (Goulart, crime victim.” supra, Foster’s Applying argument, all restitution conditions would be invalid. We therefore his reject argument. Principles
E. Statutory Construction.
Under People Caudillo Cal.3d 274], 580 P.2d statutes to the same matter be relating subject should construed if together harmonized possible. that the courts should therefore apply only one definition of for purposes victim restitution.
We have no difficulty harmonizing the statutes. The different objectives of the probation statutes the victim reimbursement provisions Gov- ernment Code justify different applications of the term “victim.” The Leg- islature explicitly recognized this distinction a detailed incorporating *14 definition of the term “victim” into the Government but not defining Thus, the term for purposes of section 1203. the left it Legislature for open an insurance company to be treated under the two differently statutory schemes. Similarly, a nonresident of California would treated differently be under the two statutory schemes. Like an insurance a nonresident company, is not entitled to payment from the A Restitution Fund. flexible interpreta- the term tion of “victim” best (Hernan- addresses the of the purpose statute. dez, supra, 468.) 30 Cal.3d at p. a statute the construction that principle
Foster also relies on of most to the defendant. favorably with must be construed penal consequences Here, 31].) (1982) 132 Gutierrez however, and the a condition of statute relates to challenged probation, rehabilitate, probation punish. is to not to purpose reasonable any probation, may impose Under statutes courts governing reform and make society, that serve amends to justice, conditions reason, of statu- (§ 1203.1) rehabilitate the defendant. For this principle does to the defendant favorably construction construction most tory favoring that best one The not be the may most “favorable” construction apply. adopt to We therefore decline objectives fulfills conditions. probation Foster’s construction statute. proposed “Onerous” Conditions Probation. F.
Next, its with seq., that Government Code section 13959 et *15 failing victim’s loss for the restitution award and for purposes computing the The to restitution award to the insurance was company. petition counsel, the of trial stated he had by objected declaration who not supported the rug to either valuation of the or the insurance payment it I “because did not me that there reason should.” any why occur to was in Even writ his of habeas defendant has not petition shown corpus, the value that the court on the was excessive. had victim’s loss Foster placed burden of if that his counsel had showing appropriate objections, raised more favorable He likely. result was did not meet this burden. Because omission, has shown no from we claim prejudice reject counsel’s his of ineffective assistance with to the valuation of the victim’s loss. respect
Moreover, as we argu discussed connection with Foster’s his appeal, ment jurisdiction court had no to award restitution to the insurance company meritless. counsel had raise a His no meritless duty objection. (Lewis, supra, 50 Cal.3d at p.
Disposition The judgment is affirmed. The for writ habeas denied. petition corpus Ramirez, J.,P. concurred.
TIMLIN, J., below, With certain I Concurring. stated exceptions concur with discussion majority and I concur with opinion completely disposition.
However, I disagree with conclusion the following contained statement on page majority 944 of the opinion heading under “Evidence Supporting Restitution Award”: failed attorney “Foster’s to object to Therefore, restitution condition in the trial court. any error is deemed waived purposes of appeal.” People then majority cites v. Walker Cal.3d 1023 Cal.Rptr.2d and People 819 P.2d v. Rivera 861] author- supporting 93] view, for that ity proposition. In my neither two of those cases support proposition.
Walker held in basically that a part defendant’s failure to object fine under Government Code section 13967 or before the time sentencing waives a claim the by defendant that he appeal was court, advised to Penal pursuant Code section 1192.5 at the time his guilty plea being that one proffered, consequences his plea *16 not con- of restitution fíne. Walker does mandatory would be a imposition of any of and the of conditions cern the imposition probation validity probation. Rivera,
Rivera, too, In to is to this case. defendant was ordered inapposite 13967, a fíne Code section subdivision restitution under Government pay dis- (c), which in its here demonstrates is majority opinion carefully the different, from or- both restitution tinctly substantively, procedurally ante, at (See maj. opn., paid dered to victims a condition of probation. Rivera, a trial on 947.) In he was entitled to jury defendant contended that discussion, colleagues “issue Without or our the of restitution.” analysis the the amount of merely Division One noted that Rivera neither contested (c), nor subdivision restitution fíne under Government Code section otherwise, the “restitution to have trial or on sought any hearing, by jury therefore, and, This (212 that at p. issue” waived issue. to dicta defendant’s failure a far from a even that a cry holding suggesting or fact, in to is waived. object a restitution order as a condition of Rivera, raise was to estopped General contended that defendant Attorney below, it issue failed to raise an related to restitution order because he contention, a which rejected and the Rivera court this that sentence holding must be an error in the matter of restitution is unauthorized because of mistake brought vacated and a sentence whenever the proper imposed (212 trial reviewing pp. the attention of the court or court. 1163-1164.)
Thus, I of a failure am not to subscribe to the prepared principle requiring trial counsel to to a condition object probationary defendant’s legality restitution constitutes a waiver an per appellate challenge se of But, a more in this case of such condition case. particular importantly, claim on condition Foster does not of restitution appeal imposition error. as proof of He contends that the court erred admitting cost amount to the victim-owner payable evidentiary the Persian This is a claim of rug. cost of replacement error. contention, is one my
As to it is view a waiver doctrine but it applies this that no court decision shall be reversed reason grounded principle an admission of evidence unless there record appears of erroneous motion exclude or or to strike evidence. v. Visciotti objection at fn. 19 825 P.2d Cal.Rptr.2d Cal.4th hearing Foster did not at the to evidence sentencing record shows Therefore, of the Persian admission cannot be original cost its rug. Further, he did evidence on the cost of attacked not introduce appeal. any *17 the the by cost considered court rug original being rebut replacing finding cost. court’s replacement Consequently, implied $8,000 value of the was at the time it was was correct. It had rug stolen $8,000, rug victim’s as the owner of the that it cost opinion originally evidence, re- absent the court could conclude that its contrary reasonably $8,000. cost, cost was the as the placement original same in its whether majority discussion of Foster’s trial counsel was ineffective for not to the of the objecting original admission into evidence value, of the cost its makes the rug replacement establish broad statement page on 946 of its “For most of stolen opinion types property cost will be a original approximation fair cost.” Because replacement comment, there is no evidence the record I this refrain from support joining majority that remark. Judicial notice of the depreciability certain personal and the property of other appreciability personal property viz., having unique qualities, even antiques, art work and Persian jewelry, rugs, my opinion, contradicts such a conclusion. I
Finally, disagree with suggestion 946 of the page majority opin- that People ion (1988) 198 Cal.App.3d Voumazos 958-959 [244 expressed an opinion that cost of a item may 82] stolen not be treated as evidence of replacement My cost for restitution purposes. reading no reveals comment regarding original cost. Voumazos Voumazos simply concluded that the statement the owner of by personal property officer as to the value of nonrecovered personal property amount, evidence proper upon which to base a restitution unless the owner’s statement or the probation officer’s that the testimony could establish sum claimed for loss property (198 was based on the replacement cost. 958-959.) pp.
Appellant’s for review the petition Court was denied June Supreme 1993. notes denied; section narrower definition of “victim” when is applies probation when et with its more inclusive definition of “victim” seq., applies term “victim” is treated is He because the granted. probation denied, is when it is broadly granted probation more when than probation with restitution to victims. respect more onerous than to prison little defendant who believes argument Any This merits attention. may are onerous than probation imprisonment conditions of his more (See People Oppen reject of course and receive his sentence. heimer all of reasons stated fact that Foster did not do so for itself. For speaks above, an company we the court ruled that insurance properly conclude There was could be treated a victim under sections 1203.1 1203.04. error, much jurisdictional no less error. 4. Assistance Counsel. Ineffective for to attorney failing object Foster contends his was ineffective company. condition that be made to insurance we have determined that an insurance appropriately Because as a under section 1203 et an seq., objection classified victim for may would have been not be criticized unavailing. Counsel condition (Lewis, supra, to raise futile 50 Cal.3d at failing objection. E011242 contention in Foster’s writ of is that petition corpus The sole habeas ineffective trial counsel was the valuation of his failing